CONDITIONS TO THE OBLIGATIONS. of Sellers under this Agreement. The obligation of Sellers under this Agreement to consummate the Closing Transactions shall be subject to the satisfaction, at or prior to the Closing, of the following conditions: (a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement; (b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated; (c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect; (d) each of the obligations of Buyer required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, and the representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date (except as to any representation or warranty which specifically relates to an earlier date), and Sellers shall have received a certificate to that effect signed by an officer of Buyer; (e) Buyer or a designated subsidiary of Buyer shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F; (f) Sellers shall have received an opinion of counsel to Buyer, in the form attached hereto as Annex F; and (g) the shareholders of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth in the UAFC Share Purchase Agreement, in accordance with New York law and the rules of Nasdaq.
Appears in 1 contract
Sources: Purchase Agreement (Penncorp Financial Group Inc /De/)
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF TRFC AND TRFC BANK. The obligation obligations of Sellers under TRFC and TRFC Bank to effect the Merger, the Bank Merger and any other transactions contemplated by this Agreement to consummate the Closing Transactions shall be further subject to the satisfaction, at or prior to the Closing, satisfaction of the following additional conditions, any one or more of which may be waived by TRFC:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer RBI and RBI Bank, respectively, required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, respects and the representations and warranties of Buyer RBI and RBI Bank contained in this Agreement shall be true and correct in all material respects correct, subject to Sections 2.1 and 2.2, as of the date of this Agreement and as of the Closing Date Effective Time as though made at and as of the Closing Date Effective Time (except as to any representation or warranty which specifically relates to an earlier date), and Sellers . TRFC shall have received a certificate to that the foregoing effect signed by an the chief executive officer and the chief financial or principal accounting officer of BuyerRBI;
(b) all action required to be taken by, or on the part of, RBI and RBI Bank to authorize the execution, delivery and performance of this Agreement and the consummation by RBI and RBI Bank of the transactions contemplated hereby shall have been duly and validly taken by the Board of Directors and stockholders of RBI or RBI Bank, as the case may be, and TRFC shall have received certified copies of the resolutions evidencing such authorization;
(c) RBI shall have obtained the consent or approval of each person (other than the governmental approvals or consents referred to in Section 5.1(b)) whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument to which RBI or its Subsidiaries is a party or is otherwise bound, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on RBI (after giving effect to the transactions contemplated hereby) or upon the consummation of the transactions contemplated hereby.
(d) TRFC shall have received certificates (such certificates to be dated as of a day as close as practicable to the Closing Date) from appropriate authorities as to the corporate existence and good standing of RBI and its Subsidiaries;
(e) Buyer or a designated subsidiary of Buyer shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F;
(f) Sellers TRFC shall have received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood, counsel to BuyerTRFC, dated as of the Effective Date, in form and substance customary in transactions of the form attached hereto type contemplated hereby, and reasonably satisfactory to TRFC, substantially to the effect that on the basis of the facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing at the Effective Time, the Merger will be treated for federal income tax purposes as Annex Fa reorganization within the meaning of Section 368(a) of the Code and that accordingly:
(i) No gain or loss will be recognized by RBI, RBI Bank, TRFC or TRFC Bank as a result of the Merger;
(ii) Except to the extent of any cash received in lieu of a fractional share interest in RBI Common Stock, no gain or loss will be recognized by the stockholders of TRFC who exchange their TRFC Common Stock for RBI Common Stock pursuant to the Merger;
(iii) The tax basis of RBI Common Stock received by stockholders who exchange their TRFC Common Stock for RBI Common Stock in the Merger will be the same as the tax basis of TRFC Common Stock surrendered pursuant to the Merger, reduced by any amount allocable to a fractional share interest for which cash is received and increased by any gain recognized on the exchange; and
(giv) the shareholders The holding period of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth RBI Common Stock received by each stockholder in the UAFC Share Purchase AgreementMerger will include the holding period of TRFC Common Stock exchanged therefor, provided that such stockholder held such TRFC Common Stock as a capital asset on the Effective Date. Such opinion may be based on, in accordance with New York addition to the review of such matters of fact and law as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ considers appropriate, (x) representations made at the request of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood by RBI, RBI Bank, TRFC, TRFC Bank, stockholders of RBI or TRFC, or any combination of such persons and (y) certificates provided at the rules request of Nasdaq▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ by officers of RBI, RBI Bank, TRFC and other appropriate persons.
Appears in 1 contract
Sources: Merger Agreement (Tr Financial Corp)
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF THE PURCHASER UNDER THIS AGREEMENT. The obligation obligations of Sellers under this Agreement the Purchaser to consummate effect the Closing Transactions Merger shall be further subject to the satisfaction, at or prior to the Closing, satisfaction of the following conditions, any one or more of which may be waived by the Purchaser:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer the Company required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, respects and the representations and warranties of Buyer the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date Effective Time as though made at and as of the Closing Date Effective Time (except as to any representation or warranty which specifically relates to an earlier date), and Sellers . The Purchaser shall have received a certificate to that the foregoing effect signed by an the president and the chief financial officer of Buyerthe Company;
(eb) Buyer or a designated subsidiary of Buyer the Purchaser shall have entered into an agreement with Integon, Occidental Life Insurance received certificates (such certificates to be dated as of a day as close as practicable to the date of the Closing) from appropriate authorities as to the corporate existence of the Company of North Carolina and Professional Insurance the Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit FBank;
(fc) Sellers the Purchaser shall have received an opinion of T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood, counsel to Buyerthe Purchaser, in form and substance reasonably satisfactory to the form attached hereto Purchaser substantially to the effect that:
(i) For Federal income tax purposes, the Merger will be treated as Annex Fa purchase by the Purchaser of all the outstanding shares of Company Common Stock held by stockholders of the Company (except Dissenters' shares); the purchase of shares of Company Common Stock by the Purchaser will be treated as a "qualified stock purchase" within the meaning of Section 338(d) (3) of the Code;
(ii) none of the Purchaser, Merger Sub, Company or the Company Bank will recognize gain or loss as a result of the Purchaser's purchase of shares of Company Common Stock from the stockholders of the Company;
(iii) Neither the Company Bank nor the Company will recognize gain or loss as a result of the Bank Merger; and
(giv) Neither the Merger nor the Bank Merger shall cause the Company Bank to restore to gross income any of its bad debt reserves previously deducted pursuant to Section 593 of the Code;
(d) the shareholders of Buyer Company shall have approved at a special meeting caused to be delivered to the Purchaser an opinion, dated the date of shareholders the Closing, from the law firm of Buyer Nyemaster, Goode, Voights, West, H▇▇▇▇▇▇ & O'▇▇▇▇▇, P.C. counsel to the Company, concerning such matters requiring shareholder approval as are customarily covered in transactions of the type contemplated hereby; and
(e) the Company shall have furnished the Purchaser with such certificates of its officers or others and such other documents to evidence fulfillment of the conditions set forth in this Section 5.02 as the UAFC Share Purchase Agreement, in accordance with New York law and the rules of NasdaqPurchaser may reasonably request.
Appears in 1 contract
CONDITIONS TO THE OBLIGATIONS. of Sellers Buyer under this Agreement. The obligation obligations of Sellers Buyer under this Agreement to consummate the Closing Transactions shall be subject to the satisfaction, at or prior to the Closing, of the following conditions:
(a) subject to Section 5.19(c) hereof, all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals (which shall include approval to restructure the capital of the PennLife Companies and the ConLife Companies to reset unassigned surplus to not less than zero) and the Buyer Approvals Approvals, shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers Buyer or (to any of the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, Companies in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby hereby, including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability any of the Sellers or the Companies to make pay ordinary dividends or to write any other reallocation material line of capital and surplus as otherwise permitted or required by this Agreement;business.
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer PLAC, PFG, SFC and PCFS required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, and the representations and warranties of Buyer PLAC, PFG, SFC and PCFS contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date (except (i) as to any representation those representations or warranty warranties which specifically relates relate to an earlier date, which need to be true and correct in all material respects as of such specified dates and (ii) to the extent that the representation and warranty set forth in Section 3.15(e) has been rendered inaccurate as the result of any claims asserted with respect to Agent Compensation between the date hereof and the Closing), and Sellers Buyer shall have received a certificate to that effect signed by a senior officer of each of PLAC, PFG, SFC and PCFS;
(e) any and all material permits, consents, waivers, clearances, approvals and authorizations of Governmental Authorities and all material consents, licenses, waivers or approvals of any other third parties (other than those contemplated by subparagraph (a) above), including the PCFS Licenses, which are necessary in connection with the consummation of the Closing Transactions and the consummation of the transactions contemplated by the Universal Share Purchase Agreement shall have been obtained;
(f) Buyer shall have received opinions of counsel to Sellers, in the forms attached hereto as Annex E;
(g) Security Life and Trust Insurance Company ("Integon") and PennLife shall have entered into a lease agreement containing the material terms set forth on Exhibit D on terms reasonably satisfactory to Buyer pursuant to which, following the Closing, PennLife will continue to occupy office space currently occupied by PennLife Employees at the facility located at Wycliff Road in Raleigh, North Carolina, for the term described in Exhibit D;
(h) Buyer or any of the Companies and AmeriLife Marketing Inc. shall have entered into an officer agreement containing the material terms set forth on Exhibit A and otherwise on terms reasonably satisfactory to Buyer; 69
(i) the capital and surplus (excluding AVR and IMR) of the PennLife Companies and the ConLife Companies reflected on the Estimated Statement shall equal or exceed the Target Capital Amount for each Company and the Aggregate Target Capital Amount shall have been satisfied;
(j) all intercompany indebtedness owed by PFG and its affiliates (other than the Companies) to any of the Companies or owed by the Companies to PFG or its affiliates (other than the Companies) as listed on Section 3.25 of the Disclosure Schedule shall have been paid in full, and all other affiliate transactions described on Section 3.25 of the Disclosure Schedule shall have been terminated (other than such affiliate transactions solely among the Companies), with no further liability to any of the Companies or relating to the PCFS Assets;
(k) PFG shall have executed and delivered the Pledge and Security Agreement;
(l) the conditions set forth in the Chase Commitment shall have been satisfied, to the satisfaction of Chase Bank and Chase Securities; provided, however, that upon receipt of notice from Chase Bank that the reports delivered by the Reserves Consultants and the 1998 Audited Financial Statements are satisfactory under the terms of the Chase Commitment (which shall be deemed satisfactory for purposes of this clause if no objection is made within 30 days of delivery of the last of such reports and financial statements), the conditions specified in this Section 6.1(m) shall no longer be conditions to the consummation by Buyer of the Closing Transactions;
(m) the Reserves Consultants shall have completed their review of all of the PennLife Insurance Reserves and the results of such reviews shall be reasonably satisfactory to Buyer; provided, however, that Buyer shall make its determination of the adequacy of such reports within 30 days of delivery of the last of such reports;
(n) each of the Pre-Closing Restructuring Transactions shall have been completed or otherwise provided for to the reasonable satisfaction of Buyer;
(eo) Sellers shall have delivered to Buyer for inclusion in the Proxy Statement the 1998 Audited Financial Statements specified in Section 5.18(a)(i) and the shareholders of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth in the UAFC Share Purchase Agreement, in accordance with New York law and the rules of Nasdaq;
(p) the Companies shall have received either (i) a rating of B+ or better from A.M. Best or (ii) assurances from A.M. Best satisfactory to Buyer that on or immediately after the Closing, the Companies will be assigned at least a B+ rating; 70
(q) Buyer or a designated subsidiary of Buyer shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F;
(fr) the Review Letter shall not indicate any material deficiency in the Unaudited Financial Statements; and
(s) Sellers shall have received an opinion of counsel delivered to Buyer a certificate complying with Treasury Regulations section 1.1445-2(b)(2), in form and substance reasonably satisfactory to Buyer, in duly executed and acknowledged, certifying that Sellers are not foreign persons within the form attached hereto as Annex F; and
(g) the shareholders meaning of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth in the UAFC Share Purchase Agreement, in accordance with New York law and the rules of Nasdaqsuch section.
Appears in 1 contract
Sources: Purchase Agreement (Penncorp Financial Group Inc /De/)
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF AFC AND THE ASSOCIATION UNDER THIS AGREEMENT. The obligation obligations of Sellers under this Agreement AFC to consummate effect the Closing Transactions Merger shall be further subject to the satisfaction, at or prior to the Closing, satisfaction of the following additional conditions, any one or more of which may be waived by AFC:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer LISB required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, respects and the representations and warranties of Buyer LISB contained in this Agreement shall be true and correct in all material respects correct, subject to Sections 2.01 and 2.02, as of the date of this Agreement and as of the Closing Date Effective Time as though made at and as of the Closing Date Effective Time (except as to any representation or warranty which specifically relates to an earlier date), and Sellers . AFC shall have received a certificate to that the foregoing effect signed by an the president and the chief financial or principal accounting officer of BuyerLISB;
(b) all action required to be taken by, or on the part of, LISB to authorize the execution, delivery and performance of this Agreement and the consummation by LISB of the transactions contemplated hereby shall have been duly and validly taken by the Board of Directors and stockholders of LISB, and AFC shall have received certified copies of the resolutions evidencing such authorization;
(c) AFC shall have received certificates (such certificates to be dated as of a day as close as practicable to the date of the Closing) from appropriate authorities as to the good standing of LISB and the corporate existence of LISB Bank;
(d) LISB shall have obtained the consent or approval of each person (other than the governmental approvals or consents referred to in Section 5.01(b)) whose consent or approval shall be required in order to permit the succession by the surviving corporation pursuant to the Merger to any obligation, right or interest of LISB or any Subsidiary of LISB under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on AFC (after giving effect to the consummation of the transactions contemplated hereby) or upon the consummation of the transactions contemplated hereby;
(e) Buyer or Neither a designated subsidiary of Buyer Distribution Date nor a Triggering Event, as such terms are defined in the LISB Rights Agreement, shall have entered into an agreement with Integonoccurred, Occidental Life Insurance Company and the LISB Rights shall not have become nonredeemable and shall not become nonredeemable upon consummation of North Carolina the Merger and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary LISB Rights shall have agreed to provide not become exercisable for capital stock of AFC upon consummation of the services specified in Exhibit F after the Closing for the period specified in Exhibit FMerger;
(f) Sellers AFC shall have received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to BuyerAFC, dated as of the Effective Date in form and substance customary in transactions of the type contemplated hereby, and reasonably satisfactory to AFC, substantially to the effect that on the basis of the facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing at the Effective Time, the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and that accordingly:
(i) No gain or loss will be recognized by AFC, the Association or LISB as a result of the Merger;
(ii) Except to the extent of any cash received in lieu of a fractional share interest in AFC Common Stock, no gain or loss will be recognized by the stockholders of LISB who exchange their LISB Stock for AFC Common Stock pursuant to the Merger;
(iii) The tax basis of AFC Common Stock received by stockholders who exchange their LISB Common Stock for AFC Common Stock in the form attached hereto Merger will be the same as Annex Fthe tax basis of LISB Common Stock surrendered pursuant to the Merger, reduced by any amount allocable to a fractional share interest for which cash is received and increased by any gain recognized on the exchange; and
(giv) the shareholders The holding period of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth AFC Stock received by each stockholder in the UAFC Share Purchase AgreementMerger will include the holding period of LISB Common Stock exchanged therefor, provided that such stockholder held such LISB Common Stock as a capital asset on the date of the Merger. Such opinion may be based on, in accordance with New York addition to the review of such matters of fact and law as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ considers appropriate, (i) representations made at the request of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood by AFC, LISB, stockholders of AFC or LISB, or any combination of such persons and (ii) certificates provided at the rules request of Nasdaq▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ by officers of AFC, LISB and other appropriate persons.
Appears in 1 contract
CONDITIONS TO THE OBLIGATIONS. The obligations of Sellers under this Agreement. The obligation of Sellers under this Agreement to consummate the Closing Transactions shall be Underwriters hereunder are subject to the satisfactionaccuracy, at or prior to when made and on the ClosingClosing Date, of the representations and warranties of the Company and the Guarantors contained herein, to the performance by the Company and the Guarantors of their respective obligations hereunder in all material respects, and to each of the following additional terms and conditions:
(a) all authorizationsNo order suspending the effectiveness of the Registration Statement shall be in effect, consents and approvals contemplated no proceeding for such purpose pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act, shall be pending before or threatened by Sections 3.6 the Commission; the Prospectus and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals each Issuer Free Writing Prospectus shall have been obtained and shall be timely filed with the Commission under the Securities Act (in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitionsthe case of an Issuer Free Writing Prospectus, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating required by Rule 433 under the transactions contemplated Securities Act) and in accordance with Section 4(a) hereof; and all requests by this Agreement) the Companies, in connection Commission for additional information shall have been complied with to the approvals by such regulators reasonable satisfaction of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;Representative.
(b) any waiting period applicable The Underwriters shall not have discovered and disclosed to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer required to be performed by it at Company on or prior to the Closing pursuant Date that the Disclosure Package, the Prospectus or any amendment or supplement thereto contains any untrue statement of a fact which is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the terms authorization, form and validity of the Operative Documents, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP a written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect set forth in Exhibit A hereto.
(e) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company, a written opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect set forth in Exhibit B hereto.
(f) At the time of execution of this Agreement, the Underwriters shall have received from Ernst & Young LLP, the independent registered public accounting firm for the Company (“EY” ), a letter, in form and substance satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof, (i) confirming that it is an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder and the Public Company Accounting Oversight Board rulings and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Registration Statement and the Disclosure Package, as of a date not more than three business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information (including pro forma financial information), operating data and other matters ordinarily covered by accountants’ “comfort letters” to underwriters, including the financial information contained or incorporated by reference in the Disclosure Package as identified by you.
(g) With respect to the letter referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement (the “initial letter” of EY), the Underwriters shall have been duly performed received from EY a letter (the “bring-down letter”), addressed to the Underwriters and complied dated the Closing Date, (i) confirming that it is an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder and the Public Company Accounting Oversight Board, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five business days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information, operating data and other matters covered by the initial letter and (iii) confirming in all material respectsrespects the conclusions and findings set forth in the initial letter.
(h) The Company shall have furnished to the Underwriters a certificate, dated the Closing Date, of the Senior Vice President and Chief Financial Officer of the Company and the Vice President and Controller of the Company stating that:
(i) The representations, warranties and agreements of the Company in Section 1 are true and correct as of the Closing Date and the Company has complied in all material respects with all its agreements contained herein;
(ii) (A) The Company and its Subsidiaries, taken as a whole, have not sustained since the date of the latest annual financial statements included in or incorporated by reference into each of the Registration Statement, the Disclosure Package and the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) and (B) since such date there has not been any material change in the capital stock, long-term debt or short-term debt of the Company or any of the Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto); and
(iii) They have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, (A) the Registration Statement and the Disclosure Package, as of the Applicable Time, and the representations Prospectus, as of its date and warranties the Closing Date, did not include any untrue statement of Buyer a material fact and did not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the respective dates of the Registration Statement, the Disclosure Package and the Prospectus, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Disclosure Package and the Prospectus.
(i) The Company and its Subsidiaries, taken as a whole, shall not have sustained since the date of the latest audited financial statements included in or incorporated by reference into each of the Registration Statement, the Disclosure Package and the Prospectus (A) any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), and (B) since such date there shall not have been any material change in the capital stock, long-term debt or short-term debt of the Company or any of its Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (A) or (B), is, in the judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any downgrading, nor shall any written notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or a Guarantor by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Ratings Group, Inc.
(k) The Company, the Guarantors and the Trustee shall have entered into the Indenture and the Underwriters shall have received executed counterparts thereof.
(l) The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for the Underwriters, an opinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents and information as they may reasonably request for the purpose of enabling them to pass upon such matters.
(m) At the time of execution of this Agreement, the Underwriters shall have received from Ernst & Young LLP, the independent auditors for BP’s integrated Southern California refining, marketing and logistics business (the “▇▇▇▇▇▇ Assets”), a letter with respect to certain of the audited and unaudited financial information of the ▇▇▇▇▇▇ Assets contained or incorporated by reference in the Disclosure Package, in form and substance satisfactory to the Underwriters.
(n) The Underwriters shall have received certificate of the Company, in form and substance reasonably satisfactory to the Underwriters, to the effect set forth in Exhibit C hereto, dated the date hereof, signed on behalf of the Company by Senior Vice President and Chief Financial Officer of the Company, regarding certain unaudited financial information relating to the Los Angeles Acquisition in the Disclosure Package and the Prospectus. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be true deemed to be in compliance with the provisions hereof only if they are in form and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date (except as to any representation or warranty which specifically relates to an earlier date), and Sellers shall have received a certificate to that effect signed by an officer of Buyer;
(e) Buyer or a designated subsidiary of Buyer shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms substance reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing counsel for the period specified in Exhibit F;
(f) Sellers shall have received an opinion of counsel to Buyer, in the form attached hereto as Annex F; and
(g) the shareholders of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth in the UAFC Share Purchase Agreement, in accordance with New York law and the rules of NasdaqUnderwriters.
Appears in 1 contract
CONDITIONS TO THE OBLIGATIONS. of Sellers the Loomis Stockholders -------------------------------------------------------- Trust, Loomis and ▇▇▇▇▇▇ Armored under this Agreement. The obligation obligations of Sellers the ----------------------------------------------------- Loomis Stockholders Trust, Loomis and ▇▇▇▇▇▇ Armored under this Agreement to consummate the Closing Transactions shall be further subject to the satisfaction, at or prior to the ClosingClosing Date, of the following conditions:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each Each of the obligations of Buyer ▇▇▇▇-▇▇▇▇▇▇ and ▇▇▇▇▇ Fargo, respectively, required to be performed by it them at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, and the representations and warranties of Buyer each of ▇▇▇▇- ▇▇▇▇▇▇ and ▇▇▇▇▇ Fargo contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date (except as to any representation or warranty which specifically relates to an earlier date), and Sellers the Loomis Stockholders Trust shall have received a certificate to that effect signed by an officer of Buyereach of ▇▇▇▇-▇▇▇▇▇▇ and ▇▇▇▇▇ Fargo, as applicable;
(eb) Buyer or a designated subsidiary Any and all material Permits, consents, waivers, clearances, and approvals of Buyer all governmental bodies which are necessary in connection with the consummation of the transactions contemplated hereby and all third party consents which are set forth in Section 9.2(b) of the Disclosure Schedule shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina been obtained and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary there shall have agreed to provide not been imposed in connection with obtaining the services specified in Exhibit F after the Closing for the period specified in Exhibit Fsame any materially adverse or burdensome terms on Loomis or Newco;
(fc) Sellers The Loomis Stockholders Trust shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to ▇▇▇▇-▇▇▇▇▇▇ and ▇▇▇▇▇ Fargo, an opinion of counsel to Buyer, substantially in the form attached hereto as Annex Fof Exhibit E hereto; andand ---------
(gd) the shareholders of Buyer The Loomis Stockholders Trust shall have approved at a special meeting received from the General Counsel of shareholders of Buyer the matters requiring shareholder approval as set forth ▇▇▇▇-▇▇▇▇▇▇ an opinion substantially in the UAFC Share Purchase Agreement, in accordance with New York law and the rules form of Nasdaq.Exhibit F hereto. ---------
Appears in 1 contract
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF EACH PARTY. The obligation respective obligations of Sellers under this Agreement the Company, the Stockholders, AirNet and Merger Subsidiary to consummate the Closing Transactions shall be Merger are subject to the satisfaction, at or prior to the Closing, satisfaction of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by this Agreement and by applicable law:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals this Agreement and the Buyer Approvals Merger and the transactions contemplated thereby shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed approved by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this AgreementStockholders in accordance with New York Law;
(b) any this Agreement and the Merger and the transactions contemplated thereby, including the issuance of the AirNet Common Shares to the Stockholders, shall have been approved by the shareholders of AirNet in accordance with Ohio Law, including, but not limited to, Section 1701.831 of Ohio Law, and the rules and regulations of the NYSE; (c) the applicable waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act relating to the Merger shall have expired or been terminated;
; (cd) the Registration Statement shall have been declared effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC; (e) the AirNet Common Shares to be issued to the Stockholders in the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance; (f) no provision of any applicable law or regulation and no judgment, injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing decree shall prohibit the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed Merger; and complied with in all material respects, and the representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date (except as to any representation or warranty which specifically relates to an earlier date), and Sellers shall have received a certificate to that effect signed by an officer of Buyer;
(e) Buyer or a designated subsidiary of Buyer shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F;
(f) Sellers shall have received an opinion of counsel to Buyer, in the form attached hereto as Annex F; and
(g) other than the shareholders filing of Buyer shall have approved at a special meeting certificates of shareholders of Buyer the matters requiring shareholder approval as set forth in the UAFC Share Purchase Agreement, merger and/or other merger documents in accordance with New York law Law and Ohio Law, all authorizations, consents, waivers, orders or approvals required to be obtained, and all filings, notices or declarations required to be made, by the rules Company, AirNet and Merger Subsidiary prior to the consummation of Nasdaqthe Merger shall have been obtained from, and made with, all required governmental or regulatory authorities except for such authorizations, consents, waivers, orders, approvals, filings, notices or declarations the failure of which to obtain or make would not, at or after the Effective Time, individually or in the aggregate, have a Company Material Adverse Effect or an AirNet Material Adverse Effect.
Appears in 1 contract
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF IBC AND ACQUISITION SUB TO EFFECT THE MERGER. The obligation obligations of Sellers under this Agreement IBC and Acquisition Sub to consummate effect the Closing Transactions shall be Merger are subject to the satisfaction, at satisfaction or waiver in writing of the following conditions prior to the Closing, of the following conditionsEffective Time:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, and the representations and warranties of Buyer contained in this Agreement University and the Shareholders shall be true and correct in all material respects as of the date of this Agreement hereof and as of the Closing Date as though made at and as of the Closing Date (except as to any representation or warranty which specifically relates to an earlier dateafter consideration of all supplemental Schedules for events occurring after the date hereof), except for representations and Sellers warranties made as of a specific date which shall be true and correct as of such date, with the same force and effect as though made on and as of the Closing, and the supplemental Schedules provided by University and Allbritton pursuant to Arti▇▇▇ ▇▇▇ ▇▇reof shall not differ in any material respect from the Schedules as in effect on the date of this Agreement;
(b) University and the Shareholders shall have performed in all material respects all obligations and agreements and in all material respects complied with all covenants and conditions, contained in this Agreement to be performed or complied with by it or them prior to the Effective Time;
(c) there shall not have occurred a Material Adverse Effect with respect to University or the Bank, provided that the failure of any employees of University or the Bank to remain employees of University or the Bank, as the case may be, shall not be deemed a Material Adverse Effect for purposes of this paragraph;
(d) IBC shall have received a certificate the opinions of counsel to that effect signed by an officer of BuyerUniversity acceptable to it as to the matters set forth on Exhibit C attached hereto;
(e) Buyer or a designated subsidiary the holders of Buyer all of the shares of issued and outstanding capital stock of University shall have entered into an agreement with Integonauthorized and approved the Merger, Occidental Life Insurance Company this Agreement and the Merger Agreement, and University shall have delivered evidence of North Carolina same to IBC in form and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms substance reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit FIBC;
(f) Sellers the aggregate principal amount of all University Indebtedness shall not exceed $2,682,777;
(g) IBC shall have received an opinion (i) certificates dated the Closing executed by Allbritton, individually an▇ ▇▇ ▇▇▇▇▇man of counsel the Board of University, certifying in such reasonable detail as IBC may reasonably request, to Buyerthe effect described in Sections 7.2(a), (b), (c), (e) and (f), and (ii) a certificate dated the Closing Date executed by the President of the Bank in the form of Exhibit D attached hereto as Annex Fhereto; and
(gh) Immediately prior to the shareholders of Buyer Closing, the Shareholders shall have approved at made a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth cash capital contribution to University in the UAFC Share Purchase Agreement, in accordance with New York law and the rules amount of Nasdaq$241,746.
Appears in 1 contract
CONDITIONS TO THE OBLIGATIONS. The obligations of Sellers under this Agreement. The obligation of Sellers under this Agreement to consummate the Closing Transactions shall be several Underwriters are subject to the satisfaction, at or prior to the Closing, of the following conditions:
(a) all authorizationsThe Representatives shall have received on the Settlement Date a certificate of the Company, consents dated such date and approvals contemplated signed by Sections 3.6 and 4.5the Chairman, including the PennLife Insurance Approvalsany Vice Chairman, the ConLife Insurance Approvals President, any Vice President, the Chief Financial Officer, the Chief Accounting Officer, the General Counsel, the Controller or any Deputy Controller and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company, to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package, the Final Prospectus and this Agreement and that (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Settlement Date with the same effect as if made on such date and the Buyer Approvals Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Settlement Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the General Disclosure Package and Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change on the consolidated condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(b) The Representatives shall have received on the Settlement Date, an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Associate General Counsel – Capital Markets of the Company, dated such date and addressed to the Representatives, with respect to the sale of the Subordinated Notes, the Indenture, the Registration Statement, the Final Prospectus, the General Disclosure Package and other related matters as the Representatives may reasonably require.
(c) The Representatives shall have received on the Settlement Date, such opinion or opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated such date and addressed to the Representatives, with respect to the sale of the Subordinated Notes, the Indenture, the Registration Statement, the Final Prospectus, the General Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received on the Settlement Date, such opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special tax counsel to the Company, dated such date and addressed to the Representatives, with respect to certain United States federal income tax matters related to the Subordinated Notes and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received as of the Time of Sale and at the Settlement Date, customary “comfort letters” from KPMG LLP that are satisfactory in content and form to the Representatives.
(f) All filings with the Commission required by Rule 424 under the Securities Act and relating to the Subordinated Notes shall have been obtained filed by the Settlement Date and shall be in full force and effect and have been made within the applicable regulators shall not have imposed time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)); any other material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A required to be filed by the parties as contemplated hereby including but not limited Company pursuant to a restriction on Rule 433(d) under the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital Securities Act and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable relating to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement Subordinated Notes shall have been duly performed filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and complied with no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(g) Subsequent to the date hereof or, if earlier, the dates as of which information is given in all material respectsthe Registration Statement (exclusive of any amendment thereof), the Preliminary Prospectus and the representations Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 4 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and warranties its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of Buyer contained business, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives after consultation with the Company, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Subordinated Notes as contemplated by the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) and any Permitted Free Writing Prospectus.
(h) Subsequent to the date hereof, there shall not have been any decrease in the rating of the Subordinated Notes or any of the Company’s senior or subordinated debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Settlement Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 4 shall not have been fulfilled when and as provided in this Agreement with respect to the sale of the Subordinated Notes, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be true reasonably satisfactory in form and correct in all material respects as of substance to the date of Representatives and counsel for the Underwriters, this Agreement and as all obligations of the Closing Underwriters hereunder may be canceled with respect to such offering at, or at any time prior to, the Settlement Date as though made at and as by the Representatives. Notice of such cancellation shall be given to the Closing Date (except as to any representation or warranty which specifically relates to an earlier date), and Sellers shall have received a certificate to that effect signed by an officer of Buyer;
(e) Buyer or a designated subsidiary of Buyer shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F;
(f) Sellers shall have received an opinion of counsel to Buyer, in the form attached hereto as Annex F; and
(g) the shareholders of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth in the UAFC Share Purchase Agreement, in accordance with New York law and the rules of NasdaqSelling Securityholder in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF PARENT AND ACQUISITION CO. The obligation respective obligations of Sellers under this Agreement Parent and Acquisition Co. to consummate effect the Closing Transactions shall be Merger are subject to the satisfaction, satisfaction at or prior to the Closing, Effective Time of the following conditions:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, and the representations and warranties of Buyer the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement at and as of the Closing Date Effective Time with 38 44 the same effect as though if made at and as of the Closing Date Effective Time (except as to any representation or warranty which the extent such representations specifically relates relate to an earlier date), in which case such representations shall be true and Sellers correct in all material respects as of such earlier date) and, at the Closing, the Company shall have received delivered to Parent and Acquisition Co. a certificate to that effect signed effect, executed by an executive officer of Buyerthe Company;
(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 at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition Co. a certificate to that effect, executed by an executive officer of the Company;
(c) the Company shall have obtained all requisite approvals of the holders of the Outstanding Company Common Stock for this Agreement and the Merger,
(d) the consents specified on Section 3.33 of the Company Disclosure Schedule and any other material third party consents necessary to consummate the transactions contemplated hereby shall have been given, obtained or complied with as applicable;
(e) Buyer or a designated subsidiary of Buyer there shall have entered into an agreement been no events, changes or effects, individually or in the aggregate, with Integonrespect to the Company having, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing or that would reasonably be expected to have, a Material Adverse Effect on the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit FCompany;
(f) Sellers Paul▇▇▇ ▇▇▇ ▇▇▇ll not have terminated her employment with the Company or given written or oral notice to the Company or Parent of her intention to do so after the consummation of the Merger;
(g) no more than 10% of the Outstanding Company Common Stock shall be Dissenting Shares, with respect to which dissenters' rights have not terminated;
(h) the Company shall have received an opinion delivered all of counsel the Closing deliveries set forth in Section 2.10(b) above;
(i) Parent shall be satisfied with the results of its due diligence investigation of the Company in its sole discretion;
(j) all Company Convertible Securities, including without limitation all outstanding options, shall have been converted into or exercised for shares of Company Common Stock or shall have been terminated, it being understood that the Cash Consideration to Buyer, in be paid by Parent at the form attached hereto as Annex FClosing shall be reduced by the aggregate stated cash exercise price of all Company Convertible Securities exercised for shares of Company Common Stock by net exercise thereof (the "Aggregate Net Exercise Price"); and
(gk) the shareholders of Buyer shall Paul▇▇▇ ▇▇▇ ▇▇▇ll have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth in the UAFC Share Purchase entered into an Employment Agreement, in accordance with New York law and substantially the rules form of Nasdaq.Exhibit F. 39 45
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Discovery Partners International Inc)
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF NFB AND NFB BANK. The obligation obligations of Sellers under NFB and NFB Bank to effect the Merger, the Bank Merger and any other transactions contemplated by this Agreement to consummate the Closing Transactions shall be further subject to the satisfaction, at or prior to the Closing, satisfaction of the following additional conditions, any one or more of which may be waived by NFB:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer JSB and JSB Bank, respectively, required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, respects and the representations and warranties of Buyer JSB and JSB Bank contained in this Agreement shall be true and correct in all material respects correct, subject to Sections 2.1 and 2.2, as of the date of this Agreement and as of the Closing Date Effective Time as though made at and as of the Closing Date Effective Time (except as to any representation or warranty which specifically relates to an earlier date), and Sellers . NFB shall have received a certificate to that the foregoing effect signed by an the chief executive officer and the chief financial or principal accounting officer of BuyerJSB;
(b) all action required to be taken by, or on the part of, JSB and JSB Bank to authorize the execution, delivery and performance of this Agreement and the consummation by JSB and JSB Bank of the transactions contemplated hereby shall have been duly and validly taken by the Board of Directors and stockholders of JSB or JSB Bank, as the case may be, and NFB shall have received certified copies of the resolutions evidencing such authorization;
(c) JSB shall have obtained the consent, waiver or approval of each person (other than the regulatory approvals or consents referred to in Section 5.1(b)) whose consent, waiver or approval shall be required in order to consummate the Merger or the Bank Merger or to permit the succession by the surviving corporation pursuant to the Merger to any obligation, right or interest of JSB or its Subsidiaries under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument to which JSB or its Subsidiaries is a party or is otherwise bound, except those for which failure to obtain such consents, waivers and approvals would not, individually or in the aggregate, have a Material Adverse Effect on NFB (after giving effect to the consummation of the transactions contemplated hereby) or upon the consummation of the transactions contemplated hereby;
(d) NFB shall have received certificates (such certificates to be dated as of a day as close as practicable to the Closing Date) from appropriate authorities as to the corporate existence and good standing of JSB and JSB Bank; and
(e) Buyer or a designated subsidiary of Buyer shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F;
(f) Sellers NFB shall have received an opinion of Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP ("Skadden"), counsel to BuyerNFB, dated as of the Effective Date, in form and substance reasonably satisfactory to NFB, substantially to the form attached hereto as Annex F; and
(g) effect that on the shareholders basis of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as facts, representations and assumptions set forth in such opinion which are consistent with the UAFC Share Purchase Agreementstate of facts existing at the Effective Time, the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering its opinion, Skadden may require and rely upon, in accordance with New York addition to the review of such matters of fact and law as Skadden considers appropriate, representations and the rules covenants, including those contained in certificates of Nasdaqofficers of NFB, NFB Bank, JSB, JSB Bank and others, reasonably satisfactory in form and substance to Skadden.
Appears in 1 contract
Sources: Merger Agreement (JSB Financial Inc)
CONDITIONS TO THE OBLIGATIONS. OF COFI, CHARTER MICHIGAN AND CHARTER ONE BANK. Notwithstanding any other provision of Sellers under this Agreement. The obligation , the obligations of Sellers under this Agreement COFI, Charter Michigan and Charter One Bank to consummate the Closing Transactions shall be Merger are subject to the satisfaction, at or prior following conditions precedent (except as to the Closing, of the following conditions:those which COFI may chose to waive):
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (subject to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companiescure provisions set forth in Section 5.8, in connection with the approvals by such regulators all of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, and the representations and warranties of Buyer contained made by Have▇▇▇▇▇▇ ▇▇▇ Home Bank in this Agreement and in any documents or certificates provided by Have▇▇▇▇▇▇ ▇▇▇ Home Bank shall be have been true and correct in all material respects as of the date of this Agreement and as of the Closing Date Effective Time as though made at on and as of the Closing Date Effective Time;
(except b) subject to the cure provisions set forth in Section 5.8, Have▇▇▇▇▇▇ ▇▇▇ Home Bank shall have performed in all material respects all obligations and shall have complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them prior to or at the Effective Time;
(c) there shall not have been any action taken or any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the Merger by any federal or state government or governmental agency or instrumentality or court, which would prohibit ownership or operation of all or a portion of the business or assets of Have▇▇▇▇▇▇ ▇▇ any Have▇▇▇▇▇▇ ▇▇▇sidiary by COFI, Charter Michigan or Charter One Bank, or would compel COFI, Charter Michigan or Charter One Bank to dispose of all or a portion of the business or assets of Have▇▇▇▇▇▇ ▇▇ any Have▇▇▇▇▇▇ ▇▇▇sidiary, as a result of this Agreement, or which would render any party hereto unable to consummate the transactions contemplated by this Agreement;
(d) since the date hereof, Have▇▇▇▇▇▇ ▇▇▇ll not have suffered a Material Adverse Effect;
(e) no regulatory authority shall impose any representation non-standard or warranty which specifically relates unduly burdensome condition relating to an earlier date)the Merger such that it would substantially deprive COFI of the economic benefits of the Merger, and Sellers as determined in the reasonable judgment of COFI;
(f) COFI shall have received the opinion of Hahn ▇▇▇▇▇▇ ▇▇▇ks, L.L.P., counsel to Have▇▇▇▇▇▇, ▇▇ the form of the attached Exhibit E;
(g) COFI shall have received a certificate to that effect signed by an officer the President and Chief Executive Officer of Buyer;Have▇▇▇▇▇▇ ▇▇▇ Home Bank, dated as of the Effective Time, certifying that based upon his best knowledge, the conditions set forth in Sections 6.1(a), (b), and (d) hereof have been satisfied.
(eh) Buyer or a designated subsidiary simultaneous with the execution and delivery of Buyer shall this Agreement, the directors of Have▇▇▇▇▇▇ ▇▇▇ are stockholders of Have▇▇▇▇▇▇ ▇▇▇ll have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina executed and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory delivered to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F;
(f) Sellers shall have received an opinion of counsel to Buyer, COFI Voting Agreements in the form attached hereto as Annex FExhibit A;
(i) COFI shall have received the written affiliates' agreements described in Section 5.3 hereof; and
(gj) Dissenting Shares shall not exceed 7% of the shareholders of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth in the UAFC Share Purchase Agreement, in accordance with New York law issued and the rules of Nasdaqoutstanding Have▇▇▇▇▇▇ ▇▇▇mon Stock.
Appears in 1 contract
Sources: Merger Agreement (Haverfield Corp)
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF THE PURCHASER TO CLOSE. The obligation obligations of Sellers under this Agreement the Purchaser to consummate close the Closing Transactions shall be transactions contemplated hereby are subject to the satisfaction, at satisfaction or waiver of the following conditions prior to the Closing, of the following conditions:
(a) all authorizations, consents All representations and approvals contemplated by Sections 3.6 and 4.5, including warranties of the PennLife Insurance Approvals, the ConLife Insurance Approvals Seller and the Buyer Approvals Stockholders shall be true and correct as of the date hereof (without giving effect to any updating or corrective information provided pursuant to ARTICLE II), and at and as of the Closing, with the same force and effect as though made on and as of the Closing;
(b) The Seller and the Stockholders shall have performed all obligations and agreements and complied with all covenants and conditions contained in this Agreement to be performed or complied with by it prior to the Closing Date;
(c) All corporate and other actions necessary to authorize the execution, delivery and performance of this Agreement by the Seller and the Stockholders and the consummation by the Seller and the Stockholders of the transactions contemplated herein shall have been obtained duly and validly taken, and the Purchaser shall be have full right and power to acquire the Seller Common Stock upon the terms provided in full force and effect and applicable regulators this Agreement;
(d) There shall not have imposed occurred any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (Material Adverse Effect with respect to the extent Sellers would Seller;
(e) The Purchaser shall have received the opinions of counsel to the Seller reasonably acceptable to the Purchaser and its counsel as to the matters set forth on, and in the form of, EXHIBIT C attached hereto;
(f) The Seller shall have executed and delivered to the Purchaser proper instruments for the transfer of the Seller Common Stock in form and substance satisfactory to counsel for the Purchaser in accordance with the terms of this Agreement;
(g) The Purchaser shall have completed in its sole discretion the results of its due diligence investigation of the Seller, including but not limited to any tax or accounting matters, the Environmental Inspections, the documentation to be prevented from consummating provided to the Purchaser by the Seller pursuant to SECTION 4.1(N), the Schedules hereto, or any change, amendment or supplement to the Schedules by the Seller or the Stockholders;
(h) The Seller shall have furnished the Purchaser with evidence of consents as shall be required to enable the Purchaser to continue to enjoy the benefit of any Governmental Authorization, lease, license, permit, Environmental Permit, Contract or other agreement or instrument to or of which the Seller is a party or a beneficiary;
(i) The Purchaser shall have received possession of all accounting, business and tax records of the Seller;
(j) The form and substance of all actions, proceedings, instruments and documents required to consummate the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with satisfactory in all material respects, reasonable respects to the Purchaser and the representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date its counsel;
(except as to any representation or warranty which specifically relates to an earlier date), and Sellers k) The Purchaser shall have received a certificate to that effect signed by an officer of Buyer;
(e) Buyer or a designated subsidiary of Buyer shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F;
(f) Sellers shall have received an opinion of counsel to Buyer, Noncompetition Agreement in the form attached hereto as Annex FEXHIBIT A executed by Joe Trulove;
(l) The Purchaser shall have received the Regist▇▇▇▇▇▇ ▇▇▇▇ts Agreement in the form attached hereto as EXHIBIT B executed by each Stockholder;
(m) At or before the Closing, the Seller shall have collected any outstanding balances with respect to loans or other receivables from officers of the Seller;
(n) The Purchaser shall have received certificates dated the Closing executed by the Chairman of the Board and the Secretary of the Seller and by the Stockholders, certifying in such reasonable detail as the Purchaser may reasonably request, to the effect described in SECTIONS 6.2(A), (B), (C) AND (D);
(o) The Purchaser shall have completed to its satisfaction an audit of the Seller's Financial Statements, and any adjustments resulting from such audit shall not constitute a Material Adverse Effect;
(p) The Purchaser shall have received from Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. a written opinion dated as of the Closing Date for the benefit of the Purchaser to the effect that (i) the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Tax Code, (ii) the Purchaser and the Seller will each be a party to that reorganization within the meaning of Section 368(b) of the Tax Code, (iii) the Purchaser or the Seller shall not recognize any gain or loss as a result of the Merger, and (iv) the Stockholders shall not recognize any gain or loss as a result of the Merger, other than gain to the extent the Stockholders receive the Cash Consideration and cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect; and
(gq) The stock option agreements described on SCHEDULE 2.15 shall be exercised simultaneously with the shareholders of Buyer Closing and the Seller shall have approved at a special meeting of shareholders of Buyer received the matters requiring shareholder approval as set forth in the UAFC Share Purchase Agreement, in accordance with New York law and the rules of NasdaqOption Proceeds therefrom.
Appears in 1 contract
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF ARCADA UNDER THIS AGREEMENT. The obligation obligations of Sellers Arcada under this Agreement to consummate the Closing Transactions shall be further subject to the satisfaction, at or prior to the Closing, of all of the following conditions, any one or more of which may be waived by Arcada:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each Each of the obligations or covenants of Buyer UStel and Newco required to be performed by it them at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, and .
(b) Each of the representations and warranties of Buyer UStel and Newco contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date Effective Time as though made at and as of the Closing Date (Effective Time except as to any representation or warranty which specifically relates to an earlier date), which shall be true and Sellers correct as of such earlier date, except in the case of such representations and warranties, where the failure to be true would not have, in the aggregate, a Material Adverse Effect on UStel.
(c) UStel shall have received a certificate furnished Arcada with such certificates of its officers or others and such other documents to that effect signed by an officer evidence fulfillment of Buyer;the conditions set forth in this Section 7.3 as Arcada may reasonably request.
(d) Since the date of this Agreement there shall have been no Material Adverse Effect with respect to UStel.
(e) Buyer Arcada shall have received an opinion, dated the Effective Date, from Freshman, Marantz, Orlanski, Cooper & Klein, reasonably ▇▇▇▇▇▇act▇▇▇ ▇o Arcada with respect to the matters set forth on Exhibit G hereto.
(f) Arcada shall have received an opinion, dated the Effective Date, from Freshman, Marantz, Orlanski, Cooper & Klein, counsel to U▇▇▇▇, re▇▇▇▇▇bly satisfactory to Arcada that the Merger qualifies as a tax-free reorganization under Section 368(a) of the Code.
(g) Any consents, waivers, clearances, approvals and authorizations of regulatory or governmental bodies that are necessary in connection with the consummation of the transactions contemplated hereby shall have been obtained, and none of such consents, waivers, clearances, approvals or authorizations shall contain any term or condition that is a designated subsidiary term or condition that has not heretofore been normally imposed in such transactions and which would have a Material Adverse Effect on Arcada or UStel.
(h) Each executive officer and director of Buyer UStel identified on Disclosure Schedule 7.3(h) shall have entered into an agreement with Integonaffiliate agreement, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F;
(f) Sellers shall have received an opinion of counsel to Buyer, substantially in the form attached hereto as Annex Exhibit F; and, as of the date hereof pursuant to which each such person shall agree to vote all shares of UStel Common Stock owned by such person or over which he or she exercises voting power in favor of the Merger in any stockholder vote to obtain UStel Stockholder Approval. In addition, each member of the board of directors of UStel who is a representative of institutions that own shares of UStel Common Stock, but who do not as individuals have dispositive voting power for such shares, shall agree to use his or her best efforts to see that such shares are made subject to the same terms and conditions as outlined above regarding the voting of such shares.
(gi) UStel shall be in compliance with all of the shareholders quantitative and qualitative maintenance criteria required for continued listing of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as set forth in the UAFC Share Purchase AgreementUStel Common Stock on The Nasdaq SmallCap Market, in accordance with New York law and the rules five day trading average closing price of Nasdaqthe UStel Common Stock for the period ending on the second to last trading day prior to Closing shall be greater than $1.00.
Appears in 1 contract
Sources: Merger Agreement (Ustel Inc)
CONDITIONS TO THE OBLIGATIONS. of Sellers Buyer and American Exchange under this Agreement. The obligation obligations of Sellers Buyer and American Exchange under this Agreement to consummate the Closing Transactions shall be subject to the satisfaction, at or prior to the Closing, of the following conditions:
(a) subject to Section 5.19(c) hereof, all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals (which shall include approval to restructure the capital of the PennLife Companies and the ConLife Companies to reset unassigned surplus to not less than zero) and the Buyer Approvals Approvals, shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers Buyer or (to any of the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, Companies in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby hereby, including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability any of the Sellers or the Companies to make pay ordinary dividends or to write any other reallocation material line of capital and surplus as otherwise permitted or required by this Agreement;business.
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer PLAC, PFG, SFC and PCFS required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, and the representations and warranties of Buyer PLAC, PFG, SFC and PCFS contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date (except (i) as to any representation those representations or warranty warranties which specifically relates relate to an earlier date), which need to be true and Sellers shall have received a certificate correct in all material respects as of such specified dates and (ii) to the extent that effect signed by an officer of Buyer;
(e) Buyer or a designated subsidiary of Buyer shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina the representation and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F;
(f) Sellers shall have received an opinion of counsel to Buyer, in the form attached hereto as Annex F; and
(g) the shareholders of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as warranty set forth in Section 3.15(e) has been rendered inaccurate as the UAFC Share Purchase Agreement, in accordance with New York law and the rules result of Nasdaq.any claims asserted with
Appears in 1 contract
Sources: Purchase Agreement (Penncorp Financial Group Inc /De/)
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF JSB AND JSB BANK. The obligation obligations of Sellers under JSB and JSB Bank to effect the Merger, the Bank Merger and any other transactions contemplated by this Agreement to consummate the Closing Transactions shall be further subject to the satisfaction, at or prior to the Closing, satisfaction of the following additional conditions, any one or more of which may be waived by JSB:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals shall have been obtained and shall be in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this Agreement;
(b) any waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act shall have expired or been terminated;
(c) no injunction, restraining order or other ruling or order issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of the Closing Transactions shall be in effect;
(d) each of the obligations of Buyer NFB and NFB Bank, respectively, required to be performed by it at or prior to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied with in all material respects, respects and the representations and warranties of Buyer NFB and NFB Bank contained in this Agreement shall be true and correct in all material respects correct, subject to Sections 2.1 and 2.2, as of the date of this Agreement and as of the Closing Date Effective Time as though made at and as of the Closing Date Effective Time (except as to any representation or warranty which specifically relates to an earlier date), and Sellers . JSB shall have received a certificate to that the foregoing effect signed by an the chief executive officer and the chief financial or principal accounting officer of BuyerNFB;
(b) all action required to be taken by, or on the part of, NFB and NFB Bank to authorize the execution, delivery and performance of this Agreement and the consummation by NFB and NFB Bank of the transactions contemplated hereby shall have been duly and validly taken by the Board of Directors and stockholders of NFB or NFB Bank, as the case may be, and JSB shall have received certified copies of the resolutions evidencing such authorization;
(c) NFB shall have obtained the consent, waiver or approval of each person (other than the governmental approvals or consents referred to in Section 5.1(b)) whose consent, waiver or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease, license or other agreement or instrument to which NFB or its Subsidiaries is a party or is otherwise bound, except those for which failure to obtain such consents, waivers and approvals would not, individually or in the aggregate, have a Material Adverse Effect on NFB (after giving effect to the transactions contemplated hereby) or upon the consummation of the transactions contemplated hereby;
(d) JSB shall have received certificates (such certificates to be dated as of a day as close as practicable to the Closing Date) from appropriate authorities as to the corporate existence and good standing of NFB and NFB Bank; and
(e) Buyer or a designated subsidiary of Buyer shall have entered into an agreement with Integon, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F or otherwise on terms reasonably satisfactory to Buyer and PFG pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit F;
(f) Sellers JSB shall have received an opinion of T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood ("T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇"), counsel to BuyerJSB, dated as of the Effective Date, in form and substance reasonably satisfactory to JSB, substantially to the form attached hereto as Annex F; and
(g) effect that on the shareholders basis of Buyer shall have approved at a special meeting of shareholders of Buyer the matters requiring shareholder approval as facts, representations and assumptions set forth in such opinion which are consistent with the UAFC Share Purchase Agreementstate of facts existing at the Effective Time, the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. In rendering its opinion, T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may require and rely upon, in accordance with New York addition to the review of such matters of fact and law as T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ considers appropriate, representations and the rules covenants, including those contained in certificates of Nasdaqofficers of NFB, NFB Bank, JSB, JSB Bank and others, reasonably satisfactory in form and substance to T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
Appears in 1 contract
Sources: Merger Agreement (JSB Financial Inc)
CONDITIONS TO THE OBLIGATIONS. of Sellers under this AgreementOF EACH PARTY. The obligation obligations of Sellers under this Agreement the Company, Farnell and Merger Subsidiary to consummate the Closing Transactions shall be Merger are subject to the satisfaction, at or prior to the Closing, satisfaction of the following conditions:
(a) all authorizations, consents and approvals contemplated by Sections 3.6 and 4.5, including the PennLife Insurance Approvals, the ConLife Insurance Approvals and the Buyer Approvals this Agreement shall have been obtained and shall be adopted by the shareholders of the Company in full force and effect and applicable regulators shall not have imposed any material and adverse prohibitions, liabilities, limitations, conditions or restrictions on Sellers or (to the extent Sellers would be prevented from consummating the transactions contemplated by this Agreement) the Companies, in connection accordance with the approvals by such regulators of the Forms A to be filed by the parties as contemplated hereby including but not limited to a restriction on the ability of Union Bankers to pay the Union Bankers Special Dividend or on the ability of the Sellers or the Companies to make any other reallocation of capital and surplus as otherwise permitted or required by this AgreementOGCL;
(b) any applicable waiting period applicable to the consummation of the sale and purchase of the Shares under the HSR Act relating to the Merger shall have expired or been terminated;
(c) no injunction, restraining order injunction or other ruling or court order issued by any Governmental Authority court of competent jurisdiction or other legal restraint or prohibition preventing shall prohibit the consummation of the Closing Transactions transactions contemplated by this Agreement; PROVIDED, however, that neither of the parties may assert its rights with respect to this condition unless it shall have used its reasonable best efforts to prevent the entry of any such injunction or other order and to appeal as promptly as possible any such injunction or other order that may be in effectentered;
(d) each the shareholders of Farnell shall have voted or passed a special resolution to approve the obligations Merger and create and authorize the issuance of Buyer required to be performed by it at or prior Farnell Shares in connection with the Merger (subject to the Closing pursuant to the terms of this Agreement shall have been duly performed and complied Effective Time having occurred) in accordance with in all material respects, and the representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date (except as to any representation or warranty which specifically relates to an earlier date), and Sellers shall have received a certificate to that effect signed by an officer of Buyerapplicable law;
(e) Buyer or a designated subsidiary of Buyer the Registration Statements shall have entered into an agreement with Integonbeen declared effective and no stop order suspending the effectiveness of the Registration Statements shall be in effect and no proceedings for such purpose shall be pending before or threatened in writing by the SEC, Occidental Life Insurance Company of North Carolina and Professional Insurance Company containing the material terms set forth on Exhibit F Farnell shall have received all state securities or otherwise on terms reasonably satisfactory "blue sky" authorizations necessary to Buyer issue Restricted ADRs and PFG Farnell ADRs pursuant to which Buyer or such subsidiary shall have agreed to provide the services specified in Exhibit F after the Closing for the period specified in Exhibit Fthis Agreement;
(f) Sellers the Farnell ADRs to be delivered in the Merger and a number of additional Farnell ADRs equal to the number of Restricted ADRs being issued in the Merger shall have received an opinion been approved for listing on the NYSE, subject to official notice of counsel issuance and satisfactory distribution, and the LSE shall have agreed to Buyer, admit to the Official List of the LSE (subject to allotment) the Ordinary Shares and Preference Shares to be issued in the form attached hereto as Annex FMerger;
(g) there shall not have been a referral of the transactions contemplated hereby to the Monopolies and Mergers Commission by the Secretary of State for Trade and Industry;
(h) any applicable waiting period under the German Competition Law shall have expired or been terminated or the German Federal Cartel Office shall have notified Farnell that the Merger may be completed; and
(gi) there shall not be pending any suit, action or proceeding by any government or governmental authority or agency, domestic or foreign, before any court or governmental authority or agency, domestic or foreign, which is reasonably likely to succeed, (i) seeking to restrain or prohibit Farnell's ownership or operation (or that of its respective subsidiaries or affiliates) of all or any material portion of the shareholders business or assets of Buyer shall have approved at the Company and its Subsidiaries, taken as a special meeting whole, or of shareholders Farnell and its Subsidiaries, taken as a whole, or to compel Farnell or any of Buyer its Subsidiaries or affiliates to dispose of or hold separate all or any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Farnell and its Subsidiaries, taken as a whole, (ii) seeking to impose or confirm material limitations on the ability of Farnell or any of its Subsidiaries or affiliates effectively to exercise full rights of ownership of the shares of capital stock of the Surviving Corporation, including, without limitation, the right to vote any of such shares acquired or owned by Farnell or any of its Subsidiaries or affiliates on all matters requiring shareholder approval as set forth in properly presented to the UAFC Share Purchase Agreementstockholders of the Surviving Corporation, in accordance with New York law and the rules or (iii) seeking to require divestiture by Farnell or any of Nasdaqits Subsidiaries or affiliates of any such shares.
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