Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions: (a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements; (b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance; (c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated; (d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities; (e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted); (f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal; (g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time; (h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and (i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals. SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions: (a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect; (b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); -------------- (c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; -------------- (d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent; (e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect; (f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger; (g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn; (h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and (i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------ SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions: (a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect; (b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; -------------- (c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company; (d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4; (e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect; (f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger; (g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn; (h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and (i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 2 contracts
Sources: Merger Agreement (Corporate Express Inc), Merger Agreement (Corporate Express Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective 3.1 The obligations of each party the Parties to effect complete the Merger issuance and subscription of the First Subscription Shares pursuant to this Agreement shall be subject to conditional upon the fulfillment at or prior to the Closing Date satisfaction or, if applicable, waiver of the following conditions:
(a) this Agreement 3.1.1 there not having occurred at any time before First Completion, any event or circumstance which renders any of the TM Home Warranties untrue, inaccurate or misleading in any material respect;
3.1.2 there not having occurred at any time before First Completion, any event or circumstance which renders any of the Alibaba Warranties untrue, inaccurate or misleading in any material respect;
3.1.3 there not having occurred at any time before First Completion, any event or circumstance which renders any of the E-House Warranties untrue, inaccurate or misleading in any material respect;
3.1.4 E-House having obtained the consent and waiver from holders of the Old Notes for, among other things, the transactions contemplated hereby shall have been approved herein and adopted by the requisite vote Restructuring;
3.1.5 each of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or Cooperation Agreements having been terminated;
(d) 3.1.6 all the Registration Statement shall have become effective in accordance with authorisations, approvals, consents, waivers and permits of, and filings with, Government Entities which are necessary for the provisions entry into this Agreement and/or the performance of the Securities Actobligations hereunder or otherwise to give effect to the transactions contemplated hereunder as required by Applicable Laws having been granted, received, obtained and no stop order suspending such effectiveness shall have been issued and remain completed;
3.1.7 there not being in effect and no proceeding for that purpose shall have been instituted by the SEC any Applicable Law restraining, enjoining or any state regulatory authorities;
(e) no preliminary otherwise prohibiting or permanent injunction or other order or decree by any federal or state court which prevents making illegal the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16by this Agreement; and
3.1.8 E-House paying Alibaba Investment, on the First Completion Date, an amount of US$1,275,000 (ithe “Incentive Fee”) all required material consents in consideration for Alibaba Investment electing not to subscribe for additional shares in TM Home pursuant to Clauses
2.1 and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay 2.2.
3.2 The obligations of the party responsible for obtaining such consents Parties to complete the issuance and approvals.
SECTION 8.2 Conditions to Obligation subscription of the Company Second Subscription Shares pursuant to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as conditional upon the satisfaction or, if applicable, waiver of the date made and on and as following conditions:
3.2.1 there not having occurred at any time before Second Completion, any event or circumstance which renders any of the Closing Date as if made at and as of such dateTM Home Warranties untrue, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President inaccurate or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified misleading in any material respect;
3.2.2 there not having occurred at any time before Second Completion, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion any event or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date circumstance which renders any of the Proxy StatementAlibaba Warranties untrue, the effective date inaccurate or misleading in any material respect;
3.2.3 there not having occurred at any time before Second Completion, any event or circumstance which renders any of the Registration Statement E-House Warranties untrue, inaccurate or misleading in any material respect;
3.2.4 the courts of the Cayman Islands and Hong Kong having sanctioned the relevant Scheme filed under the laws of Cayman Islands and the Closing Date (or such other date reasonably acceptable to laws of Hong Kong, as the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement itemscase may be, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to ParentRestructuring having become unconditional in all respects;
(e) since 3.2.5 all the date hereofauthorisations, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waiversapprovals, consents, orderswaivers and permits of, and approvals legally filings with, Government Entities which are necessary for the entry into this Agreement and/or the performance of the obligations hereunder or otherwise to give effect to the transactions contemplated hereunder as required for by Applicable Laws having been granted, received, obtained and completed; and
3.2.6 there shall not be in effect any Applicable Law restraining, enjoining or otherwise prohibiting or making illegal the consummation of the Merger and any of the transactions contemplated hereby by this Agreement.
3.3 The Conditions set out in Clauses 3.1.1 and 3.2.1 may be waived in writing in whole or in part by E-House and Alibaba Investment. The Conditions set out in Clauses 3.1.2 and 3.2.2 may be waived in writing in whole or in part by E-House. The Conditions set out in Clauses 3.1.3, 3.1.5, 3.1.8 and 3.2.3 may be waived in writing in whole or in part by Alibaba Investment. The Conditions set out in Clauses 3.1.4, 3.1.6, 3.1.7, 3.2.4, 3.2.5 and 3.2.6 may not be waived by any Party.
3.4 E-House shall have been obtained use all reasonable endeavours to procure the satisfaction and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent continued satisfaction of the Merger;
Conditions set out in Clauses 3.1 and 3.2 (g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company Conditions set out in Clause 3.1.1, 3.1.2, 3.2.1 and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 163.
Appears in 2 contracts
Sources: Agreement for the Issuance and Subscription of Shares, Agreement for the Sale and Purchase of Shares
Conditions. SECTION 8.1 Conditions The obligation of Cogentrix GP and Cogentrix LP to Each Party's Obligation to Effect make the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be contributions described in Section 3.2 are subject to the fulfillment satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Loan Agreement, the Purchase Agreement and the Management and Marketing Agreement shall have been executed by all parties thereto. An original executed copy of the Loan Agreement, the Purchase Agreement and the Management and Marketing Agreement and all documents and agreements executed or delivered in connection therewith shall have been delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Loan Agreement and the Purchase Agreement shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other agreements, instruments and other deliveries which are required to be made by any party under the Loan Agreement or the Purchase Agreement at or prior to the Closing Date initial funding or closing of the following conditions:
(a) this transactions contemplated by such agreement shall have been delivered or received. A copy of all such deliveries required to be made by any party under the Loan Agreement or the Purchase Agreement and other evidence of the closing of the Purchase Agreement and the transactions contemplated hereby Loan Agreement shall have been approved be provided to Cogentrix GP and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;Cogentrix LP.
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired The following representations or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Management and Marketing Agreement.
(ii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or the Management and Marketing Agreement, nor compliance by it with the terms and provisions hereof or thereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iii) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(iv) The representations and warranties, if any, of VF Delaware or VF or any of their respective Affiliates in or pursuant to the Management and Marketing Agreement are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and on and as of the Closing Date Cogentrix LP, mutatis mutandis, as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form fully set forth in Exhibit 8.2(c) attached hereto; --------------herein.
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (The following representations or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such daterespects, and Parent shall have received a Certificate of the President are hereby made to VF Delaware and Chief Executive Officer or of a Vice President of the Company, in form VF by Cogentrix GP and substance reasonably satisfactory Cogentrix LP as an inducement to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel their making capital contributions to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; andPartnership:
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P.Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, public accountants validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for Parent in this Agreement, and Subsidiary(C) has taken all necessary action to authorize the execution, shall delivery and performance of this Agreement.
(ii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have delivered been duly obtained), or conflicts or will conflict with or result in a letterbreach or violation of its charter documents or by-laws or any of the terms, dated conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iii) It is not an "investment company" or a company "controlled" by an "investment company" within the Closing Datemeaning of the Investment Company Act of 1940, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16amended.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Cogentrix Energy Inc), Limited Partnership Agreement (Ecoscience Corp/De)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective 4.1 The obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of Parties, respectively, as contemplated by this Agreement, are in all respects conditional upon the following conditionsmatters:
(a) Each Party being given full access to all the relevant records relating to the other Parties. The Parties agree that they, and their representatives shall not disclose any information so furnished without the consent of the furnishing Party;
(b) There not being any objection put forward by any relevant authority in connection with the finality and purpose of this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuanceherein;
(c) the waiting period applicable to the consummation The completion of the Merger under agreements contemplated hereby, including the HSR Act shall have expired or been terminatedamendment of Goltech's regulations, and other organizational documents to reflect the matters stipulated hereinabove;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC No governmental agency or regulatory body or any state regulatory authorities;
(e) no preliminary other person or permanent injunction organization having instituted any action, suit or other order investigation which restrains, prohibits or decree by any federal or state court which prevents otherwise challenges the consummation completion and performance of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated herebyin this Agreement; or threatened to take any action as a result of or in anticipation of the transactions contemplated in this agreement; or proposed or enacted any statute or regulation which would prohibit, materially restrict or materially delay implementation of the transactions contemplated by this Agreement.
4.2 MOT and its representatives shall have the right to conduct a full due diligence review of the activities, accounts, contracts, capital, payables, receivables, oil sales, production, exploration, assets, liabilities, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay other facets of the party responsible businesses of Goltech, Goloil and Teton for obtaining a period until 24 July 2000. Without limiting the foregoing, Teton shall provide to MOT a detailed list of its liabilities and obligations. In the event that such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Companydue diligence reveals events, the obligation of the Company to effect the Merger shall be subject to the fulfillment at circumstances, facts or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and other matters which breach the representations and warranties set forth herein, reveal any material liabilities of Parent Goloil, Goltech or Teton, or matters that materially adversely affect the rights of MOT hereunder, or under any agreement executed and Subsidiary contained delivered in connection herewith, then MOT may terminate this Agreement Agreement, and thereupon the provisions of Clause 2.10 shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date apply as if made at MOT had breached this Agreement. Thereupon, each Party shall take such actions, deliver such instruments and otherwise undertake such operations as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary necessary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel give effect to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16foregoing.
Appears in 2 contracts
Sources: Master Agreement (Teton Petroleum Co), Master Agreement (Teton Petroleum Co)
Conditions. SECTION 8.1 Conditions The Dealer Managers are entitled to Each Party's Obligation to Effect withdraw as Dealer Managers in connection with the Merger. Unless waived by Invitation at any time if conditions set forth in this Section 10 are not met or waived, and the parties, the respective obligations of each party the Dealer Managers hereunder are at all times subject, in their discretion, to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) All representations and warranties and other statements of the Republic contained in this Agreement are, on the date hereof (the "Commencement Date"), and at all times during the transactions contemplated hereby shall have been approved Invitation and adopted by until the requisite vote of the stockholders of the Company under applicable law Settlement Date, true and applicable listing requirements;correct in all material respects.
(b) The Republic at all times from the shares date hereof through the Settlement Date must have performed in all material respects all of Parent Common Stock issuable in the Merger its obligations hereunder theretofore required to have been performed.
(i) The Prospectus Supplement shall have been authorized filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for listing on Nasdaq upon official notice of issuance;
(c) such filing by the waiting period applicable to the consummation of the Merger rules and regulations under the HSR Securities Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective and in accordance with the provisions of the Securities Act, and Section 4(d) hereof; (ii) no stop order suspending such the effectiveness of the Registration Statement or any part thereof shall have been issued and remain in effect and no proceeding for that the purpose thereof shall have been instituted initiated or threatened by the SEC Commission on or any state regulatory authorities;
prior to the Settlement Date; and (eiii) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents all requests for additional information on the consummation part of the Merger Commission shall have been issued and remain in effect (each party agreeing complied with to use its your reasonable efforts to have any such injunction, order or decree lifted);satisfaction.
(fd) no action shall have been takenOn the Commencement Date and the Settlement Date, and no statuteCleary, rule or regulation shall have been enactedGottlieb, by any state or federal government or governmental agency in the Steen & Hamilton, your United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waiverscounsel, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required must have furnished to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & you ▇▇▇▇ wr▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter▇▇inion or opinions, dated the Closing Date, addressed to Parentrespective date of delivery thereof, in form and substance reasonably satisfactory to Parentyou. In rendering such opinion or opinions, stating that Cleary, Gottlieb, Steen & Hamilton may rely as to all matters of Philippine law upon the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of o▇▇▇▇▇▇ ▇▇▇▇ & ns ▇▇▇▇▇▇▇▇ LLPto in paragraphs (e) and (f) of this Section 10.
(e) On the Commencement Date and the Settlement Date, special counsel Romulo, Mabanta, Buenaventura, Sayoc & de Los Angeles, your Philippine c▇▇▇▇▇▇, must have furnished to you such written opinion or opinions, dated the Companyrespective date of delivery thereof, in form and substance reasonably satisfactory to the Companyyou. In rendering such opinion or opinions, effective such counsel may rely as to all matters of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within Federal and New York law upon the meaning opinion of Section 368(aCleary, Gottlieb, Steen & Hamilton, referred to in paragraph (d) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of this Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------10.
(cf) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & IngersollCommencement Date and the Settlement Date, special the Secretary of Philippine Department of Justice, Philippine counsel for the Republic, must have furnished to Parent and Subsidiaryyou a written opinion or opinions, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the respective date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Companydelivery thereof, in form and substance reasonably satisfactory to you. In rendering such opinion or opinions, such counsel may rely as to all matters related to United States Federal and New York law upon the Companyopinion of Allen & Overy, stating that referred to in paragraph (g) of this Section 10.
(▇) On the Company has not taken any action that would affect Commencement Date and the ability to account Settlement Date, Allen & Overy, United States counsel for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall Republic, must have entered into an employment agreement with furnish▇▇ ▇▇ yo▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇")ir written opinion or opinions, a form dated the respective date of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Companydelivery thereof, in form and substance reasonably satisfactory to Parent you. In rendering such opinion or opinions, such counsel may rely as to that effect;all matters of Philippine law upon the opinion of the Secretary of Philippine Department of Justice, referred to in paragraph (f) of this Section 10.
(bh) Parent shall On the Commencement Date and the Settlement Date, the Republic must have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPfurnished to you a certificate in English, special counsel dated the respective date of delivery thereof, signed by the Secretary of Finance of the Republic, to the Company, effective as of the Closing Date, substantially in the form effect set forth in Exhibit 8.3(bSection 10c(ii) attached hereto; --------------
and Section 10(k) (c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements the certificate delivered on the Settlement Date) and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio representations and warranties of the Republic contained in this Agreement are true and correct in all material respects as of the respective date of such certificate and that the Republic has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder in all material respects on or before the respective date of such certificate.
(i) Since the respective dates as of which information is fairgiven in the Prospectus, from a financial point of viewon the Commencement Date and on or prior to the Settlement Date, to Parent's stockholders, and such opinion there shall not have been withdrawn;any change, or any development involving a prospective change, in or affecting the financial, economic or political condition of the Republic, other than as set forth in the Prospectus, the effect of which, in any such case, is in your judgment material and adverse such as to make it impracticable to effect the Invitation, the acquisition of the Old Bonds or the delivery of New Global Bonds on the terms and in the manner contemplated by the Prospectus.
(hj) Subsequent to the Company shall Commencement Date and on or prior to the Settlement Date, none of the following must have delivered occurred, if the effect of any such event, singly or together with any other such event, in your judgment makes it impracticable to Parent its audited consolidated financial statements effect the Invitation, the acquisition of the Old Bonds or the delivery of the New Global Bonds on the terms and in the manner contemplated by the Prospectus, or would materially and adversely affect the market for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
New Global Bonds: (i) Coopers & ▇▇▇▇▇▇▇ L.L.P.a suspension or material limitation in trading in securities generally on the New York Stock Exchange, public accountants for Parent the London Stock Exchange or the Luxembourg Stock Exchange; (ii) a suspension or material limitation in trading in any securities of the Republic on any international exchange or over-the-counter market; (iii) a general moratorium on commercial banking activities in New York, London or the Republic declared by either United States or New York State authorities or authorities of London or the Republic, respectively; (iv) the outbreak or escalation of hostilities involving the United States or the Republic or the declaration by the United States or the Republic of a national emergency or war; or (v) the occurrence of any calamity or crisis or any material adverse change in international financial markets or the existing financial, political or economic conditions in the United States, the Republic or elsewhere.
(k) Subsequent to the Commencement Date and Subsidiary, shall have delivered a letter, dated on or prior to the Closing Settlement Date, addressed to Parentthere has not occurred any downgrading, and no notice has 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 form the rating accorded the Republic or any of the Republic's securities or securities guaranteed by the Republic or in the rating outlook for the Republic by any nationally recognized statistical rating organization.
(l) On or prior to the Settlement Date, the Republic must have furnished to you such further information, opinions, certificates, letters and substance documents as you may reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16request.
Appears in 1 contract
Sources: Dealer Managers Agreement (Republic of the Philippines)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date 3.1 Completion is conditional upon fulfilment of the following conditionsconditions precedent:
(a) the Listing Committee of the Stock Exchange granting the approval for the listing of, and the permission to deal in, the Placing Shares and such listing and permission not subsequently being revoked;
(b) all necessary consents and approvals to be obtained on the part of the Company in respect of this Agreement and the transactions contemplated hereby shall have hereunder having been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuanceobtained;
(c) the waiting period applicable to the consummation there shall not have occurred any material breach or any event which renders any of the Merger representations, warranties or undertakings by the Company under the HSR Act shall have expired this Agreement untrue, inaccurate or been terminated;misleading; and
(d) this Agreement not being terminated by the Registration Statement Placing Agent pursuant to Clause 11.
3.2 The Company shall use its best endeavours to procure the satisfaction of the conditions set out in Clause 3.1 on or before 19 January 2024 or such later date as agreed between the Company and the Placing Agent in writing (“Long Stop Date”), but if any of the conditions shall not be so satisfied, all rights, obligations and liabilities of the Placing Agent and of the Company hereunder shall cease and determine and none of the parties hereto shall have become effective any claim against the other in accordance with the provisions relation thereto (save in respect of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents any antecedent breach of any obligation under this Agreement; and approvals of lenders who have advanced $5,000,000 or more (ii) any liabilities under Clauses 9.2(2), 9.4 and 10).
3.3 As soon as reasonably practicable by the day which is the third Business Day before the Long Stop Date, the Placing Agent will use reasonable endeavours to Parent or deliver to the Company and lessors the Stock Exchange (and/or the SFC, if requested) details of material leases shall the Placee(s) procured on a best effort basis to subscribe for the Placing Shares including, inter alia, their names and addresses and the number of Placing Shares which they have been obtained respectively agreed to subscribe, and be in effect at (if requested by the Effective Time; providedStock Exchange and/or the SFC) together with acknowledgments signed by each of the Placees confirming, howeverinter alia, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents Placee (and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as any of such date, Placee’s nominees or beneficial owners) is independent of and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President not connected with or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, acting in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of concert with the Company and Parent, to the effect that (i) the Merger any of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement itemsits connected persons, including total assets, working capital, total stockholders' equity, total revenues the substantial shareholders and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders directors of the Company, to the effect that the consideration to be received by the stockholders or any of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16their respective associates.
Appears in 1 contract
Sources: Placing Agreement
Conditions. SECTION 8.1 Conditions The Dealer Manager shall be entitled to Each Party's Obligation to Effect withdraw as Dealer Manager in connection with the Merger. Unless waived by Invitation, at any time, if the partiesconditions set forth in this Section 11 are not met, and the respective obligations of each party to effect the Merger Dealer Manager hereunder shall at all times be subject subject, in its discretion, to the fulfillment at or prior to the Closing Date of the following conditionsconditions that:
(a) this Agreement All representations and warranties and other statements of Colombia contained herein are now, and on the transactions contemplated hereby shall have been approved Announcement Date and adopted by the requisite vote of the stockholders of the Company under applicable law Settlement Date will be, true and applicable listing requirements;correct.
(b) Colombia at all times during the shares of Parent Common Stock issuable in the Merger Invitation shall have performed all of its obligations hereunder theretofore required to have been authorized for listing on Nasdaq upon official notice of issuance;performed.
(c) the waiting period applicable Prior to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities ActSettlement Date, and no stop order suspending such the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and remain in effect and no proceeding proceedings for that purpose shall have been instituted by the SEC or threatened; any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation request of the Merger Commission for additional information shall have been issued complied with to your reasonable satisfaction; and remain the Prospectus Supplement and the prospectus supplement referenced in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(fSection 4(d) no action hereof shall have been takenfiled pursuant to the applicable provision of Rule 424(b) under the Act or as an amendment to the registration statement No. 333-109215 within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(d) of this Agreement.
(d) On the date hereof and on the Settlement Date, and no statute, rule the Head or regulation Acting Head of the Legal Affairs Group of the Direccion General de Credito Publico of the Ministerio de Hacienda y Credito Publico of Colombia shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required furnished to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letteryou such counsel's written opinion, dated the Closing Daterespective date of delivery thereof, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; andeffect that:
(i) all required material consents Colombia has full power and approvals of lenders who have advanced $5,000,000 or more authority to Parent or execute and deliver the Company Agreements and lessors of material leases shall have been obtained the New Bonds, to incur the obligations to be incurred by it as provided in the Agreements and be in effect at the Effective Time; providedNew Bonds, however, that and to perform and observe the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay provisions of the party responsible for obtaining such consents Agreements and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required New Bonds on its part to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effectobserved;
(bii) The execution, delivery and performance by Colombia of the Agreements and the New Bonds and the making of the Invitation have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by Colombia, and constitute legal, valid and binding obligations of Colombia enforceable in accordance with their terms;
(iv) The New Bonds issued pursuant to the Invitation have been duly authorized by Colombia in accordance with the Fiscal Agency Agreement, and when executed, issued and delivered by Colombia and the Fiscal Agent pursuant to the Invitation, the New Bonds will constitute legal, valid and binding obligations of Colombia enforceable in accordance with their terms;
(v) The obligations of Colombia under the New Bonds will at all times on and following the Settlement Date be supported by the full faith and credit of Colombia and will at all times on and following the Settlement Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the New Bonds) of Colombia that will rank equal in right of payment with all other present and future unsecured and unsubordinated External Indebtedness of Colombia;
(vi) There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon Colombia, nor (to the best of such counsel's knowledge) any provision of any contract, agreement or instrument to which Colombia or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of Colombia or any Governmental Agency be effected, as a result of the execution and delivery by Colombia of any of the Agreements, the making of the Invitation and the issuance and delivery of the New Bonds pursuant to the Invitation as contemplated herein and in the Invitation Material, or as a result of the performance or observance by Colombia of any of the terms of any of the Agreements or the New Bonds;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in Colombia is required for (A) the Company shall have received an opinion due execution, delivery and performance by Colombia of ▇any of the Agreements or the New Bonds, (B) the validity or enforceability against Colombia of any of the Agreements or the New Bonds, (C) the making of the Invitation; or (D) the issuance and delivery of the New Bonds by Colombia pursuant to the Invitation as contemplated herein and in the Invitation Material except (I) the relevant portions of Law 80 of October 28, 1993, (II) Decree No. 2681 of December 29, 1993, (III) Resolution No. 2103 dated Nov▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Ingersoll▇▇ Hacienda y Credito Publico, special and (IV) External Resolution No. 3 of June 20, 2003 issued by the Board of Directors of the Central Bank, each of which has been obtained or complied with and is in full force and effect on the date hereof (each of which shall be listed in such counsel's written opinion and copies of which shall be furnished to counsel to Parent the Dealer Manager on or prior to the Commencement Date;
(viii) There is no pending or, to the knowledge of such counsel after reasonable inquiry, threatened legal action or proceeding affecting Colombia or any Governmental Agency before any court, governmental agency or arbitrator which may, individually or in the aggregate, materially adversely affect the financial condition of Colombia or which purports to affect the legality, validity or enforceability of any of the Agreements, the Invitation, or the New Bonds to be issued pursuant to the Invitation;
(ix) To ensure the legality, validity, enforceability, priority or admissibility in evidence in Colombia of each of the Agreements or the New Bonds to be issued pursuant to the Invitation, it is not necessary that any Agreement or such New Bonds be registered, recorded, published or filed with any court or other authority in Colombia or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any Agreement or the New Bonds, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Credito Publico or by the Acting Director General of Public Credit of a request for publication of (x) Resolution No. 2103 dated November 18, 2003 of the Ministerio de Hacienda y Credito Publico, in the Diario Oficial of Colombia and Subsidiary(y) a summary of the Agreements in the Diario Unico de Contracacion Publica of Colombia, to satisfy the requirement of such publications, and (B) in accordance with External Resolution No. 3 dated June 20, 2003, issued by the Junta Directiva del Banco de la Republica, the delivery of written information from the Director of Public Credit of Ministerio de Hacienda y Credito Publico to Junta Directiva del Banco de la Republica, regarding the proposed issuance of the New Bonds, each of which shall be effected on or prior to the Settlement Date;
(x) Colombia is empowered to issue the New Bonds. Any failure of Colombia to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of all amounts due from Colombia under the Agreements or the New Bonds will not constitute a defense to enforcement of the obligations of Colombia, as defined therein, under the Agreements and the New Bonds;
(xi) To such counsel's knowledge after reasonable inquiry, no event has occurred and is continuing which, had the New Bonds already been issued, would with the giving of notice and/or the passage of time constitute an Event of Default, as defined therein, under the New Bonds;
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied, whether by withholding or otherwise, by Colombia or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by Colombia of any Agreement or the New Bonds, the enforcement hereof or thereof against Colombia, or any payment to be made by Colombia pursuant hereto or thereto; provided, that, the New Bonds are held by a non-resident and non-domiciliary of Colombia;
(xiii) Under the laws of Colombia, neither Colombia nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, provided, that, except as provided under Article 177 of the Codigo Contencioso Administrativo, which does not override Article 684 or 513 of the Codigo de Procedimiento Civil, of Colombia, the revenues, assets and property of Colombia located in Colombia are not subject to execution, set-off or attachment. The waiver of immunity by Colombia contained in the Fiscal Agency Agreement, the New Bonds and Section 14 hereof, the appointments of the Authorized Agent in the Fiscal Agency Agreement, the New Bonds and Section 14 hereof, the consents by Colombia to the jurisdiction of the courts specified in the Fiscal Agency Agreement, the New Bonds and Section 14 hereof, and the provisions that the law of the State of New York shall govern the Fiscal Agency Agreement, the New Bonds and this Agreement as provided in the Fiscal Agency Agreement, the New Bonds and Section 19 hereof are irrevocably binding on Colombia and service of process effected in the manner set forth in the Fiscal Agency Agreement, the New Bonds and Section 14 hereof will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over Colombia;
(xiv) The courts of Colombia would give effect to and enforce a judgment obtained in a court outside of Colombia through a procedural system provided for under Colombian law known as "exequatur", subject to the provisions of Article 693 of the Codigo de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of Colombia and subject to compliance with the provisions of Article 694 of the Codigo de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by Colombia following a failure to pay amounts due and owing under the Agreements or the New Bonds are as follows:
(A) the foreign judgment presented in Colombia for enforcement does not conflict with public order laws of Colombia, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in Colombia, (C) no proceedings are pending in Colombia with respect to the same cause of action, and no final judgment has been awarded in Colombia in any proceeding on the same subject matter and between the same parties, and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant for the defense of the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in Colombia would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by Colombia under the Agreements or the New Bonds would not conflict with public order laws of Colombia;
(xv) The Agreements are, and the New Bonds, upon the due execution, authentication, issuance and delivery thereof pursuant to the Invitation, will be, in proper legal form under the laws of Colombia for the enforcement in accordance with their terms thereof;*
(xvi) The Registration Statement, as amended, and the Prospectus, as amended or supplemented, and their filing with the Commission have been duly authorized by and on behalf of Colombia, and the Registration Statement, as amended, has been duly executed by and on behalf of Colombia, and the information in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, stated on the authority of public officials of Colombia has been stated in their official capacities thereunto duly authorized;
(xvii) The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the New Bonds and the Fiscal Agency Agreement, insofar as matters of Colombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law, are correct in all material respects;
(xviii) The Refrendacion (Acknowledgement) of the Agreements and the New Bonds by the Contralor General de la Republica, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements and the New Bonds. The Contralor General de la Republica is required by law to acknowledge the Agreements and the New Bonds; provided, that, the New Bonds have been issued according to Colombian regulations and in compliance with all applicable requirements. The New Bonds, upon the due execution, authentication, issuance and delivery thereof pursuant to the Invitation, will have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la Republica to acknowledge the Agreements and the New Bonds will not affect the obligations of Colombia in respect of the New Bonds;* ------------------- * Tenses used in this subsection will vary based on the date of delivery of such opinion.
(xix) In addition, such counsel shall, on the date hereof and on the Settlement Date, have furnished you with a letter, dated the Closing Daterespective date of delivery thereof, reasonably satisfactory to the Company substantially effect that:
(A) No information has come to such counsel's attention that causes such counsel to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and
(B) No information has come to such counsel's attention that causes such counsel to believe that the Prospectus, as amended or supplemented, as of the date thereof or on the date of delivery of such counsel's letter, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may state that such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the form Prospectus (except to the extent expressly set forth in Exhibit 8.2(c(xvii) attached hereto; --------------
above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel's opinions referred to in this subsection (d) are limited to matters of Colombian law and, insofar as the Company opinion required by this subsection (d) is affected by matters of United States or New York law, it may be given in reliance upon the opinion required by subsection (e) of this Section 11 and that, insofar as the foregoing opinions relate to the legality, validity, binding effect or enforceability of any agreement or obligation of Colombia, such counsel has assumed that each party to such agreement or obligation other than Colombia has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it.
(e) On the date hereof and on the Settlement Date, Cleary, Gottlieb, Steen & Hamilton, United States counsel to Colombia, shall have received "comfort" letters in customary form from Coopers & furnish▇▇ ▇▇ yo▇ ▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiarywritten opinion, dated the respective date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Companydelivery thereof, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; andthat:
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect 3.1 Completion is conditional on the Merger. Unless waived by following conditions being satisfied or waived:
3.1.1 the parties, Buyer having notified the respective obligations of each party to effect the Merger shall be subject Agreement to the fulfillment at or prior FCO and (in so far as the Agreement must be notified in accordance with ss35 to the Closing Date of the following conditions:39 GWB):
(a) this Agreement the one month time limit as laid down in s40 paragraph 1 GWB having expired without the FCO having made a Relevant Request and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;either:
(b) the shares of Parent Common Stock issuable FCO having confirmed in writing within that period that the Merger shall have been authorized conditions for listing on Nasdaq upon official notice of issuance;a prohibition in s36 paragraph 1 GWB are not fulfilled; or
(c) if no such confirmation is received after submission of a complete notification of this Agreement, neither the waiting Buyer nor the Seller having been notified by the FCO within that period applicable to the consummation that it has entered into a detailed examination of the Merger under Agreement pursuant to s40 paragraph 2 of the HSR Act shall have expired or been terminated;GWB; or
(d) the Registration Statement shall have become effective four month time limit as laid down in accordance with the provisions s40 paragraph 2 of the Securities ActGWB, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted or any extended time period consented to by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents Buyer and the consummation Sellers under s40 paragraph 2 sentence 3 point 1 of the Merger shall have been issued GWB, having expired and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation s40 paragraph 2 sentence 3 of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders GWB not otherwise applying and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; andeither:
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received FCO having issued a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company formal clearance decision pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Codes40 paragraph 2 GWB; or
(ii) Parentif no such confirmation is received after submission of a complete notification of this Agreement, Subsidiary and Company will each be a party the FCO not having issued an order prohibiting the Agreement pursuant to the reorganization within the meaning of Section 368(b) of the Codes40 paragraph 2 GWB; and or
(iii) the stockholders of FCO having waived the Company will not recognize gain or loss as a result of requirement to suspend Completion pursuant to s41 paragraph 2 GWB; and
3.1.2 the Merger, except to the extent such stockholders receive cash OFT having indicated in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably terms satisfactory to the Company substantially in Buyer (acting reasonably) that it is not its intention to refer the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date acquisition of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable Shares pursuant to this Agreement to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16CC; and
3.1.3 approval by the Buyer’s Funders of the terms of this Agreement and the transaction contemplated hereby for the purpose of the provision of finance to the Buyer (i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇")including, a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiarywithout limitation, the obligations of Parent and Subsidiary to effect guarantee undertaking by the Merger shall be subject to the fulfillment at or Guarantor under clause 16).
3.2 If, prior to the Effective Time Conditions in clause 3.1 being satisfied, the FCO and/or the OFT has made a request to the European Commission pursuant to Article 22(3) ECMR, Completion will then be conditional on the following conditions being satisfied:
3.2.1 the European Commission having issued a decision pursuant to Article 6(1)(b) (or being deemed to have done so pursuant to Article 10(6)) ECMR in respect of those parts of the additional following conditions:Agreement which were the subject of the request; or
3.2.2 (aif the European Commission issues a decision pursuant to Article 6(1)(c) ECMR to initiate proceedings in respect of those parts of the Agreement which were the subject of a request) the Company shall have performed in all material respects its agreements contained in this Agreement required European Commission having subsequently issued a decision under Article 8(2) ECMR; or
3.2.3 the European Commission having granted a derogation from the requirement to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent suspend Completion pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.Article 7(4)
Appears in 1 contract
Conditions. SECTION 8.1 Conditions Anything to Each Partythe contrary herein notwithstanding, Buyer's Obligation obligation to Effect purchase the Merger. Unless waived by Property shall be expressly conditioned upon the parties, the respective obligations fulfillment of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditionsconditions precedent (collectively, the "Buyer's Conditions Precedent") on or before the Closing Date:
(a) this Agreement and the transactions contemplated hereby Buyer shall have been approved received surveys, title commitments, and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
such other property documents, as Buyer shall have reasonably required to be delivered; (b) the shares of Parent Common Stock issuable in the Merger Seller shall have been authorized for listing on Nasdaq upon official notice of issuancedelivered tenant estoppel certificates or reliance letters from such Tenants as Buyer shall have required;
(c) the waiting period applicable Without duplication of Section 3.2(b) hereof, Seller shall have delivered estoppel certificates from such parties to the consummation reciprocal easement and operating agreements affecting any portion of the Merger under the HSR Act Property, as Buyer shall have expired or been terminatedreasonably required;
(d) the Registration Statement Buyer shall have become effective in accordance with the provisions received such written approvals of the Securities Acttransfer of the Property from such governmental authorities as may be required for such transfer and continued use and operation thereof by Buyer (including without limitation, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authoritiesconsent of the Industrial Development Agency of Seneca County);
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents Seller shall have delivered (i) if there is a third party property manager, a final lien waiver from the consummation property manager for each portion of the Merger shall have been issued Property or (ii) if there is no third party property manager, a certification whereby Seller represents and remain in effect (warrants to Buyer that there is no third party property manager for each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)portion of the Property;
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as As of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion Seller shall not have commenced (within the meaning of any Bankruptcy Law) a voluntary case, nor shall any involuntary case have been withdrawn;
(h) commenced against Seller, nor shall Seller have consented to the Company appointment of a Custodian of it or for all or any substantial part of its property, nor shall a court of competent jurisdiction have delivered to Parent entered an order or decree under any Bankruptcy Law that is for relief against Seller in an involuntary case or which appoints a Custodian of Seller for all or any substantial part of its audited consolidated financial statements property. The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state law for the year ended December 31relief of debtors. The term "Custodian" means any receiver, 1996trustee, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statementsassignee, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations liquidator or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction similar official under APB 16.any Bankruptcy Law;
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the partiesThe provisions of this Agreement, the respective obligations other than this clause, clause 9 (Announcements), clause 11 (Costs), clause 12 (Notices) and clause 13 (Governing Law, Service of each party to effect the Merger shall be Process and Arbitration) are subject to the fulfillment at or prior to the Closing Date each of the following conditions:conditions being satisfied in all respects (or waived):
(aA) the clearance of all announcement(s) and circular(s) (if any) required to be issued by the Purchaser under the Listing Rules and granting of all approvals, if necessary by FINRA in respect of all transactions contemplated by this Agreement;
(B) the Purchaser and the Seller each undertaking a due diligence investigation in respect of the other including but not limited to the financial affairs, business, assets, results, legal and financing structure, title checking, in which each party shall use its best endeavours to complete the due diligence investigation within 10 (ten) days following the date of this Agreement and each being in its absolute discretion satisfied with the results of such due diligence investigation;
(C) the Regulatory Committee of FINRA granting listing of, and permission to deal in, the Consideration Shares;
(D) no event having occurred since the date hereof to Completion, the consequence of which is to materially and adversely affect the financial position, business or property, results of operations or business prospects of the Group or the Purchaser and such material adverse effect shall not have been caused;
(E) the passing by the Shareholders of the Purchaser at an extraordinary general meeting to be convened and held (if necessary) of an ordinary resolution to approve this Agreement and the transactions transaction contemplated hereby shall have been approved hereunder including but not limited to the allotment and adopted by the requisite vote issue of the stockholders of the Company under applicable law and applicable listing requirementsConsideration Shares credited as fully paid;
(bF) the shares Warranties remaining true and accurate and not misleading at Completion as if repeated at Completion and at all times between the date of Parent Common Stock issuable in this Agreement and Completion; and if the Merger shall Conditions have not been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired fulfilled or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the CompanyPurchaser (other than conditions (A), the obligation of the Company to effect the Merger shall (C) and (E) which may not be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(awaived) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date before 24 July 2013 (or such other date reasonably acceptable as the parties may agree), the provisions of this Agreement (other than this clause, clause 9 (Announcements), clause 11 (Costs), clause 12 (Notices) and clause 13 (Governing Law, Service of Process and Arbitration) shall from such date have no effect and no party shall have any liability under them (without prejudice to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and rights of any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be Parties in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent respect of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"antecedent breaches), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Sources: Share Purchase Agreement (Paradigm Resource Management Corp)
Conditions. SECTION 8.1 Conditions Notwithstanding any other provision, as a condition precedent to Each Party's Obligation to Effect the Merger. Unless waived by the partieseffectiveness of this Agreement, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date all of the following conditionsconditions must be satisfied on the Effective Date:
(a) 1. All documents, instruments and other writings required to be delivered by Company to Purchaser pursuant to any provision of this Agreement or in order to implement and effect the transactions contemplated hereby shall herein have been approved fully executed and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementsdelivered, including without limitation those enumerated in Section II.B above;
(b) 2. The Common Stock is listed for and currently trading on the same or higher Trading Market and, subject to Section IV.L below, Company is in compliance with all requirements to maintain listing on the Trading Market, and there is no notice of any suspension or delisting with respect to the trading of the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuancesuch Trading Market;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger3. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the The representations and warranties of Parent Company and Subsidiary contained Purchaser set forth in this Agreement shall be are true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of on such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the 4. No material breach or default has occurred under any Transaction Document or any other agreement between Company and Parent, to Purchaser; 5. Company has the effect that (i) the Merger number of Subsidiary with and into the Company duly authorized shares of Common Stock reserved for issuance as required pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning terms of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parentthis Agreement;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be 6. There is not then in effect at the Closing Date, and no governmental authority shall have promulgated any statutelaw, rule or regulation whichprohibiting or restricting the transactions contemplated in any Transaction Document, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on requiring any consent or approval which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall will not have been withdrawn;
(h) Deloitte & Touche LLPobtained, independent public accountants for nor is there any pending or threatened proceeding or investigation which may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement; no statute, rule, regulation, executive order, decree, ruling or injunction will have been enacted, entered, promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits the transactions contemplated by this Agreement, and no actions, suits or proceedings will be in progress, pending or, to Company’s knowledge threatened, shall have delivered a letterby any person other than Purchaser or any Affiliate of Purchaser, dated that seek to enjoin or prohibit the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16transactions contemplated by this Agreement; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇7. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇")Any rights of first refusal, a form preemptive rights, rights of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions participation, or any similar right to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed participate in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall by this Agreement have been obtained and be waived in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16writing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ascent Solar Technologies, Inc.)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect 4.1 The agreements of the Merger. Unless waived by the parties, the respective obligations Bank contained in Clause 3.1 of each party to effect the Merger this First Supplemental Agreement shall all be expressly subject to the fulfillment at or prior condition that the Bank shall have received in form and substance satisfactory to the Closing Date Bank and its legal advisers on or before the date of the following conditionsthis First Supplemental Agreement:
(a) evidence that the persons executing this First Supplemental Agreement and on behalf of each Borrower are duly authorised to execute the transactions contemplated hereby shall have been approved and adopted by the requisite vote same on behalf of the stockholders of the Company under applicable law and applicable listing requirementssuch Borrower;
(b) a certificate of an Officer of the shares New Owner confirming the names of Parent Common Stock issuable in all the Merger shall have been authorized for listing on Nasdaq upon official notice Directors and Shareholders of issuancethe New Owner and having attached thereto true and complete copies of its incorporation and constitutional documents;
(c) the waiting period applicable to the consummation true and complete copies of the Merger under resolutions passed at separate meetings of the HSR Act shall have expired Sole Director and Shareholders of the New Owner authorising and approving the execution of the New Finance Documents and any other document or been terminatedaction to which it is or is to be a party and authorising its directors or other representatives to execute the same on its behalf;
(d) the Registration Statement shall have become effective in accordance with the provisions original of the Securities Act, and no stop order suspending such effectiveness shall have been any power of attorney issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authoritiesNew Owner pursuant to such resolutions aforesaid;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents evidence that “DELRAY” is:
(i) registered in the consummation name of New Owner under the laws and flag of the Merger shall Malta; and
(ii) insured in accordance with the relevant provisions of the New Mortgage and all requirements thereof in respect of such insurance have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);fulfilled; and
(f) no action shall the New Finance Documents, duly executed by the New Owner together with evidence that:
(i) the New Mortgage has been registered against “DELRAY” with first priority in accordance with the laws of Malta;
(ii) all notices required to be given under the New Deed of Covenant, the New General Assignment and the New Charterparty Assignment have been taken, given and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency acknowledged in the United States which would prevent manner therein provided; and
(iii) save for the consummation charges created by or created by or pursuant to the New Mortgage, the New Deed of Covenant, the Merger New General Assignment and the New Charterparty Assignment there is no lien, charge or make the consummation encumbrance of the Merger illegal;any kind whatsoever on “DELRAY” or her Earnings, Insurances or Requisition Compensation.
(g) all governmental waivers, consents, orders and approvals legally required for the consummation a certified true copy of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be any Approved Charter entered into in effect at the Effective Timerespect of “DELRAY”;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating evidence that the Merger will qualify New Earnings Account has been opened;
(i) documents establishing that “DELRAY” is managed by the Approved Manager;
(j) a letter of undertaking executed by the Approved Manager in favour of the Bank in the terms required by the Bank agreeing certain matters in relation to the management of “DELRAY” and subordinating the rights of the Approved Manager against “DELRAY” and the New Owner to the rights of the Bank under the Finance Documents;
(k) copies of ISM DOC and SMC and the International Ship Security Certificate under the ISPS Code in respect of “DELRAY”;
(l) certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, approvals or consents with respect to this First Supplemental Agreement and the New Finance Documents (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as a pooling-of-interests transaction under APB 16the Bank deems appropriate;
(m) such legal opinions as the Bank may require in respect of the matters contained in this First Supplemental Agreement and the New Finance Documents; and
(in) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, evidence that the failure agent referred to obtain such consents or approvals shall -------- ------- not be due to the default or delay in Clause 9.4 has accepted its appointment as agent for service of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in process under this First Supplemental Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16New Finance Documents.
Appears in 1 contract
Sources: Loan Agreement (DryShips Inc.)
Conditions. SECTION 8.1 6.1 Conditions to Each Party's Obligation to Effect the MergerMergers. Unless waived by the parties, the The respective obligations of each party to effect the Merger shall Mergers will be subject to the fulfillment or waiver by both parties at or prior to the Closing Date of the following conditions:
(a) this Agreement This Agreement, the Smith's Merger and the transactions contemplated hereby Fred Meyer Merger shall each have been approved and adopted in the manner required by applicable law by the requisite vote respective holders of the stockholders issued and outstanding shares of the Company under applicable law capital stock of Smith's and applicable listing requirementsof Fred Meyer;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the The waiting period applicable to the consummation of the Merger Mergers under the HSR Act shall have expired or been terminated;
(dc) the Registration Statement shall have become effective in accordance with the provisions Neither of the Securities Actparties hereto shall be subject to any order, decree, ruling or injunction of a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunctionlaw, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enactedpromulgated or enacted by a governmental or regulatory authority, by any state or federal government or governmental agency in the United States which would prevent prohibits the consummation of the Merger transactions contemplated by this Agreement or make would otherwise impair the consummation ability of Holdings to operate the Merger illegalbusiness of Smith's and Fred Meyer on a consolidated basis following the Closing;
(gd) The Form S-4 shall have become effective and shall be effective at the Effective Time, and no stop order suspending effectiveness of the Form S-4 shall have been issued, no action, suit, proceeding or investigation by the SEC to suspend the effectiveness thereof shall have been initiated and be continuing or, to the knowledge of Fred Meyer or Smith's, be threatened in writing, and all governmental waiversnecessary approvals under state securities laws relating to the issuance or trading of Holdings Common Stock to be issued to Smith's and Fred Meyer stockholders in connection with the Mergers shall have been received;
(e) All consents, consentslicenses, permits, authorizations, orders and approvals legally of (or filings or registrations with) any governmental or regulatory authorities required for in connection with the consummation execution, delivery and performance of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, this Agreement shall have been obtained or made, except for filings in connection with the Mergers and any other documents required to be in effect at filed after the Effective Time and except where the failure to have obtained or made any such consent, license, permit, authorization, order, approval, filing or registration would not have a Material Adverse Effect on Holdings following the Effective Time;
(hf) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, Holdings Common Stock to be issued to Smith's and Fred Meyer stockholders in connection with the Mergers shall have delivered a letterbeen approved for listing on the NYSE, dated the Closing Date, addressed subject only to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16official notice of issuance; and
(ig) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at After the Effective Time; provided, howeverno Person will have any right under any stock option plan (or any option granted thereunder) or other plan, that the failure program or arrangement to obtain such consents acquire any equity securities of Smith's, Fred Meyer or approvals shall -------- ------- not be due to the default or delay any of the party responsible for obtaining such consents and approvalstheir respective Subsidiaries.
SECTION 8.2 6.2 Conditions to Obligation of the Company Smith's to Effect the MergerMergers. Unless waived by the Company, the The obligation of the Company Smith's to effect the Merger shall Mergers will be subject to the fulfillment or waiver by Smith's at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary Fred Meyer shall have performed and complied in all material respects their with all material obligations and agreements contained in this Agreement required to be performed on and complied with by it under this Agreement at or prior to the Closing Date and the Date;
(b) The representations and warranties of Parent and Subsidiary Fred Meyer contained in this Agreement that are qualified as to materiality shall be true and correct, and such representations and warranties of Fred Meyer that are not so qualified shall be true and correct in all material respects on and respects, in each case both as of the date of this Agreement and on the Closing Date as though made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the MergerDate, except to the extent such stockholders receive cash representations and warranties are expressly made as of an earlier date, in lieu which case, such representations and warranties shall be true and correct as of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------date;
(c) the Company Smith's shall have received a certificate from the President or an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date Executive Vice President of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinionFred Meyer, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the CompanyClosing Date, to the effect that the consideration to be received by the stockholders of the Company conditions set forth in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
paragraphs (a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall above have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Companybeen satisfied;
(d) From the Affiliate Agreements required date of this Agreement through the Effective Time, a Material Adverse Effect with respect to be delivered to Parent pursuant to Section 7.4 Fred Meyer shall not have been furnished as required by Section 7.4occurred;
(e) since the date hereof, there Holdings shall have been no changes that haveduly executed the Supplemental Warrant Agreement and, upon the execution by the other parties thereto, such agreement shall be in full force and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effecteffect as of the Effective Time;
(f) all governmental waiversSmith's shall have received on the Closing Date a legal opinion from its tax counsel, consentsLatham & Watkins, orders and approvals legally required for substantially to the consummation effect that, on the basis of the Merger facts, representations and assumptions set forth in such opinion, the transactions contemplated hereby shall have been obtained and be in effect at the Closing DateFred Meyer Merger, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgationsthe Smith's Merger, would materially impair the value to Parent will be treated as an exchange under Section 351(a) of the MergerCode;
(g) Parent Smith's shall have received on the Closing Date a legal opinion from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. counsel to Fred Meyer (or other nationally recognized investment banking firm which counsel shall be reasonably acceptable to Smith's) in substantially the Parent) an opinion reasonably acceptable to the Parent, dated form attached hereto as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;Exhibit G; and
(h) the Company Holdings shall have delivered to Parent its audited consolidated financial statements for duly executed the year ended December 31Registration Rights Agreement and the New Management Agreement and, 1996upon execution by the other parties thereto, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements agreements shall reflect earnings which are not materially less than the average be in full force and effect as of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Meyer Fred Inc)
Conditions. SECTION 8.1 3.1 Completion is conditional upon the following Conditions being fulfilled to Each Party's Obligation to Effect the Merger. Unless satisfaction of the Investors or waived by the partiesInvestors in writing in accordance with this Agreement, on or before the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditionsCompletion Date:
(a) this Agreement the waiver of all pre-emption rights over the Subscription Shares from the Founders, the Employee Shareholder and Biz Cloud Parties for the issue by the Company and the transactions contemplated hereby shall have been approved and adopted subscription by the requisite vote Investors of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have Subscription Shares has been obtained and be is continuing in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form full force and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion Shareholders’ Agreement having been duly executed by each of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPThe Mearas Venture, special counsel to The Wings Venture, the CompanyFounders, in form the Employee Shareholder, Biz Cloud Parties and substance reasonably satisfactory to the Company, effective as members of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------Group;
(c) all relevant authority and body having given all consents, approvals, clearances or authorisations necessary or desirable for the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------Completion (if any);
(d) adoption by the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date Restated Articles as of the Registration Statement Completion Date to give full effect to, inter alia, creation of the new Series A Preferred Shares and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parentattached rights;
(e) since the date hereofpassing of the necessary board and shareholders’ resolutions of the Company approving the terms and the execution of the Transaction Documents, there shall have been no changes that havethe adoption of the Restated Articles, and no event or events shall have occurred which have resulted the transactions contemplated in or haveaccidental to this Agreement, in a Parent Material Adverse Effectform to the satisfaction of the Investors;
(f) all governmental waiversthere being no third party that has:
(i) instituted or threatened any action or investigation to restrain, consents, orders, and approvals legally required for prohibit or otherwise challenge the consummation issuance of the Merger and Subscription Shares or any of the transactions contemplated hereby shall have been obtained and be under the Transaction Documents; and
(ii) threatened to take any action as a result of or in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent anticipation of the Mergerimplementation of the transactions contemplated under the Transaction Documents;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Companythere having been no Material Adverse Change, Inc. (or other nationally recognized investment banking firm reasonably acceptable any development likely to Parent) an opinion, dated as of involve a prospective Material Adverse Change since the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawnthis Agreement until Completion;
(h) Deloitte & Touche LLPthere having been no breach by any Group Company of any of the Warranties, independent public accountants for and the Company, shall have delivered a letter, dated the Closing Date, addressed Warranties remaining true and accurate in all material respects and not misleading in any material respect as at Completion by reference to the Company, in form facts and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger circumstances subsisting as a pooling-of-interests transaction under APB 16at Completion; and
(i) completion of the due diligence review (including discussion with auditors of the Group and Biz Cloud Investments Limited) and that the results of such due diligence review have not revealed or disclosed any matter, fact or circumstance which in reasonable opinion of the Investors constitutes any material breach of any of the Warranties or other provisions of this Agreement by the Company.
3.2 The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇Investors may at any time by notice in writing to the Company waive any of the Conditions. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form If any of which the Conditions is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless not fulfilled or waived by Parent and Subsidiary, all the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment Investors at or prior before 5:00 p.m. on the Long Stop Date, this Agreement shall automatically terminate with immediate effect.
3.3 Each Party must co-operate with the other and do all things reasonably necessary to procure that the Effective Time Conditions are fulfilled.
3.4 The Conditions Precedent are for the benefit of the additional following conditionsInvestors, and may only be waived in writing by all the Investors.
3.5 If:
(a) any of the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed Conditions are not fulfilled on or prior to before the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;Completion Date; or
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel any clearance or authorisation required under any of the Conditions is not granted on terms acceptable to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached heretoInvestors; --------------or
(c) Parent shall have received "comfort" letters a Party becomes aware that a Condition cannot be satisfied, and in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date each of the Proxy Statementcases above, not all the effective date of Investors are willing to waive the Registration Statement and Condition(s) in accordance with Clause 3.4, then the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related Parties may terminate this Agreement by seven days’ notice to the Company;other Parties.
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof3.6 If this Agreement is terminated under this Clause 3, there shall have been no changes that haveClause 4 or Clause 5, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required except for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996this Clause 3, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statementsClauses 1 (Interpretation), 8 (Confidentiality), 9 (Notices), 10 (Costs and Expenses), 12 (Entire Agreement), 17 (Law and Jurisdiction), 18 (General) and 19 (Third Party Interest), which financial statements shall reflect earnings which are not materially less than will survive the average termination of the published projections this Agreement, this Agreement will be null and void and of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normalno effect, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating save that the Merger will qualify as a pooling-of-interests transaction under APB 16termination of this Agreement from any cause shall not release any Party from any liability which at the time of termination has already accrued.
Appears in 1 contract
Sources: Subscription Agreement
Conditions. SECTION 8.1 Conditions CTI’s obligation to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall close will be subject to the fulfillment at or prior to the Closing Date conditioned on:
A. After review of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable additional due diligence information pursuant to Section V, supra, F.O.H. will confirm in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect writing that (i) the Merger of Subsidiary with it has had a full opportunity to ask questions, conduct due diligence and into the Company pursuant to the Merger Agreement request information from CTI and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; its officers and directors, (ii) Parentall inquiries and requests for information have been answered to FOH’s satisfaction, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders additional confidential due diligence information provided hereunder is incorporated herein and modifies or constitutes exceptions to CTI’s representations and warranties hereunder, and (iv) it ratifies this Agreement and intends to proceed with the Closing.
B. Any approval, review or on-boarding requirement of Templum shall have been received.
C. The parties acknowledge that the Schedule of Merger Costs and some other exhibits have not been completed or annexed to this Agreement. Closing is contingent on completion of the Company will not recognize gain or loss as a result Schedule of the Merger, except Merger Costs and all exhibits to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------F.O.H.’s satisfaction.
(c) the Company D. The parties shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇provided for any contingent liability of J▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated arising from the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇Good G▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Companyof Lease dated November 11, Inc. 2021 (or other nationally recognized investment banking firm reasonably acceptable to Parentthe “GGG”) an opinionin respect of that certain Agreement of Lease by and between CTI and 1201 Broadway LLC, dated as of (the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h“Lease”) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; andeither by
(i) The parent shall have entered into an employment agreement FOH establishing a segregated escrow account of $172,000 (the “Escrow Account”) for the purpose of covering all CTI’s remaining obligations under the Lease, with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form funds remaining in the Escrow Account in excess of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, aggregate amount payable under the obligations of Parent and Subsidiary to effect the Merger shall be subject Lease returned to the fulfillment at or prior Surviving Corporation from time to time;
(ii) CTI’s notifying the Effective Time landlord of the additional following conditions:
(a) “Surrender Date” under the Company shall have performed in GGG and satisfying all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties relating obligations of the Company contained in this Agreement shall be true and correct in all respects on and as thereunder including vacating the leased premises; or
(iii) FOH coming to satisfactory terms with the landlord to assume the Lease with termination of the date made and on and as GGG. No course of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form action set forth in Exhibit 8.3(b(i), (ii) attached hereto; --------------or (iii) shall in any way excuse Surviving Corporation’s obligations under the lease.
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 E. The transaction shall have been furnished approved by CTI’s shareholders as required by Section 7.4;
(e) since law and under CTI’s constitutive and Series A documents including such consents or waivers under the date hereof, there shall have been no changes that have, and no event SAFE instruments as the CTI board may deem necessary or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16desirable.
Appears in 1 contract
Sources: Acquisition Agreement (Collectable Sports Assets, LLC)
Conditions. SECTION 8.1 Conditions Any payments or benefits upon termination of the Employee's employment under Section V of the Employment Contract (including but not limited to Each Party's Obligation to Effect the Merger. Unless waived by the partiesAccrued Amounts, the respective obligations of each party Severance Amount and any equity awards the Employee has received pursuant to effect the Merger shall be 2012 LTIP), are subject to the fulfillment at or prior to the Closing Date a unilateral right of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted set-off by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to during and following the effect that period of any breach or violation by the Employee of (i) the Merger protective covenants under Sections
6.1 to 6.5 of Subsidiary with the Employment Contract during and into after expiration of the Company pursuant Employment Contract (i.e. covenants regarding non-competition, including but not limited to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) terms of the Code; Non-Competition Agreement, no solicitation or interference, confidential information, inventions, return of documents and property), (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) 9 of the Code; Change in Control and Severance Agreement, and (iii) the stockholders Employee's fiduciary obligations to members of the Company will Orthofix Group under applicable law, including but not recognize gain or loss limited to the Employee's fiduciary duties under Delaware law pursuant to the Employee's status as a result an executive officer of Parent through the date of the MergerEmployee's resignation from such office. In particular, except the Employee further understands and agrees that payment to him of the extent such stockholders receive cash Accrued Amounts and Severance Amount (each, as defined in lieu Section 3 of fractional sharesthe Change in Control and Severance Agreement, and such opinion shall not have been withdrawn or modified in any material respectthe amounts described in Exhibit A hereto) is conditioned upon and subject to, substantially among other things, (i) the Employee's effective delivery and non-revocation of the Release (as defined in Section 5 of the Change in Control and Severance Agreement, and in the form of Exhibit 8.2(b); --------------
B hereto) following the Termination Effective Date in accordance with the terms of the Change in Control and Severance Agreement, (cii) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & IngersollEmployee's full compliance with all the terms of the Non-Competition Agreement and all terms of Section 9 of the Change in Control and Severance Agreement, special counsel to Parent and Subsidiary, dated (iii) the Closing Date, reasonably satisfactory Employee's continued compliance with all fiduciary duties (including but not limited to the Company substantially in duty of loyalty) applicable to the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) Employee under the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date laws of the Proxy Statement, the effective date State of the Registration Statement and the Closing Date (or such other date reasonably acceptable Delaware pursuant to the Company) with respect to certain financial statements and other financial information included in Employee's status as an executive officer (or, following the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event Employee's resignation or events shall have occurred which have resulted in or haveremoval as an officer, a Parent Material Adverse Effect;
(fformer executive officer) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions The Executive’s eligibility to Each Party's Obligation receive and retain any Non-Change in Control Post-Employment Compensation or payments pursuant to Effect the Merger. Unless waived by the partiesSections 3, the respective obligations of each party to effect the Merger shall be 4(d), 4(e), 4(f) or 4(g)hereof, is subject to the fulfillment at or prior to the Closing Date satisfaction of all of the following conditions:
as well as the covenant of confidentiality set forth in Section 6 below and the assignment of rights to Intellectual Property (aas hereafter defined), but with the express understanding and agreement of the parties that the Executive is free to elect not to comply with clause (i) below and is free not to forbear from competition or solicitation as set forth in clauses (ii), (iii) and (iv) immediately below, but that his right to Non-Change in Control Post-Employment Compensation or payments pursuant to Sections 4(e) or 4(g) under this Agreement is expressly conditioned on compliance with said clause (i) and the transactions contemplated hereby shall have been approved forbearance required under all of said clauses (ii), (iii) and adopted by the requisite vote (iv), as well as full satisfaction of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger obligations under the HSR Act covenant of confidentiality and assignment of rights to Intellectual Property (which obligations are not optional and shall have expired survive any termination, howsoever occurring). The conditions to receipt of Non-Change in Control Post-Employment Compensation or been terminated;
(dpayments pursuant to Sections 4(e) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e4(g) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify are as a pooling-of-interests transaction under APB 16; andfollows:
(i) all required material consents The Executive’s execution and approvals return, to the person designated by the Company to receive notices on its behalf in accordance with Section 17 hereof, of lenders who have advanced $5,000,000 or more a timely and effective release of claims in the form attached hereto and marked Exhibit A (“Release of Claims”). Such a Release of Claims will be timely and effective if it is signed by the Executive, submitted to Parent or the Company, and becomes irrevocable within twenty-eight (28) days following termination of employment (such twenty-eight (28) day period, the “Claims Release Period”). The Release of Claims creates legally binding obligations and the Company therefore advises the Executive to consult an attorney before signing it.
(ii) Forbearance by the Executive for six (6) months following the Date of Termination from competition with the business of the Company and lessors its Immediate Affiliates anywhere in the world where the Company or any of material leases those Immediate Affiliates is doing business, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise. Specifically, but without limiting the foregoing, in order to satisfy this condition, the Executive must forbear from engaging in any activity that is competitive, or is in preparation to engage in competition, with the business of the Company and its Immediate Affiliates and further the Executive must forbear from working or providing services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, for or to any Person engaged in the business of the Company and its Immediate Affiliates. The business of the Company and its Immediate Affiliates is optical network equipment. The foregoing condition, however, shall have been obtained not fail to be met solely due to the Executive’s passive ownership of less than three percent (3%) of the equity securities of any publicly traded company, including without limitation a competitor of the Company or any of its Immediate Affiliates.
(iii) Forbearance by the Executive for twelve (12) months following the Date of Termination from any direct or indirect solicitation or encouragement of any of the Customers of the Company or any of its Immediate Affiliates to terminate or diminish his relationship with the Company or any of its Immediate Affiliates and be from any direct or indirect solicitation or encouragement of any of the Customers or Potential Customers of the Company or any of its Immediate Affiliates to conduct with the Executive or with any other Person (as defined in effect Section 12 hereof) any business or activity which such Customer or Potential Customer conducts or could conduct with the Company or any of its Immediate Affiliates. For purposes of this Section 4(i), a “Customer” is a Person which was such at any time during the Effective Time; providedtwelve (12) months immediately preceding the Date of Termination and a “Potential Customer” is a Person contacted by the Company or any of its Immediate Affiliates to become a Customer at any time within twelve (12) months prior to the Date of Termination other than by general advertisement, provided in each case, however, that the failure Executive had contact with such Customer or Potential Customer through his employment or his other associations with the Company or any of its Immediate Affiliates or had access to obtain Confidential Information that would assist in his solicitation of such consents Customer or approvals shall -------- ------- not be due to Potential Customer in competition with the default Company or delay any of the party responsible for obtaining such consents and approvalsits Immediate Affiliates.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived (iv) Forbearance by the Company, Executive for twelve (12) months following the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of Termination from directly or indirectly hiring or otherwise engaging the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on services of any employee, independent contractor or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory other agent providing services to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) or any of its Immediate Affiliates and from soliciting any such employee, independent contractor or agent to terminate or diminish his/her/its relationship with the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P.or any of its Immediate Affiliates. For purposes of this Section 4(i), certified public accountants for Parent and Subsidiaryan “employee, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (independent contractor or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and agent” means any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event person or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required entity performing services for the consummation Company or any of its Immediate Affiliates in such capacity at any time during the Merger and twelve (12) months immediately preceding the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent Date of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Termination.
Appears in 1 contract
Sources: Employment Agreement (GigPeak, Inc.)
Conditions. SECTION 8.1 Conditions Other than the requirements set forth in Section 1(a) and Section 2(d) above (which are subject to Each PartyIridium's Obligation to Effect compliance with Section 4, Iridium and Motorola acknowledge that the Merger. Unless waived by the parties, the respective obligations execution and delivery of each party to effect the Merger shall be document contemplated hereby is subject to the fulfillment at or prior following conditions: (i) Iridium's compliance with the Amended and Restated Agreement Regarding Guarantee and Iridium's compliance with this MOU and (ii) with respect to any document relating to the Closing Date Secured Bridge Facility, the consistency of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote terms of the stockholders Secured Bridge Facility with the terms of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable Commitment Letter after giving effect to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective Required Revisions and Motorola's reasonable satisfaction in accordance its good faith discretion with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory of such documentation. As a condition to ParentMotorola's execution and delivery of Amendment No. 2, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
Iridium must deliver to Motorola (i) all required material consents a duly authorized and approvals executed amendment of lenders who have advanced $5,000,000 or more its Limited Liability Company Agreement (the "LLC Agreement") which provides for: (A) the issuance to Parent or Motorola of an aggregate number of Series B Class 2 Interests (as defined in the Company and lessors of material leases shall have been obtained and be in effect LLC Agreement) sufficient to provide Motorola with at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay lease six members of the party responsible for obtaining such consents Iridium Board of Directors so long as the Motorola Exposure exceeds $750,000,000 and approvals.
SECTION 8.2 Conditions (B) the right of Motorola to Obligation appointment of at least two members of the Company to Effect Iridium Banking and Finance Committee so long as the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the CodeMotorola Exposure exceeds $750,000,000; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) evidence of the Codeauthorization of such amendment and the issuance of the Series B Class 2 Interests by the Iridium Board and are applicable committees thereof; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent certificate evidencing such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form Series B Class 2 Interests. Iridium acknowledges that Motorola's agreements set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date this MOU also are conditioned upon consistency of the Proxy Statementtransactions and agreements contemplated hereby with the terms set forth, or referenced in this MOU and those outlined in the effective date Offering Memorandum and the Commitment Letter after giving effect to the Required Revisions. If the terms of the Registration Statement transactions or agreements contemplated hereby vis-a-vis Motorola differ materially and the Closing Date adversely from such documents, or contain additional material and adverse terms (in each case, in Motorola's discretion acting in good faith), Iridium acknowledges that Motorola has no obligation to execute any documents or such other date reasonably acceptable to the Company) with respect consent to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇hereby. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.* * * *
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations (a) The obligation of each party Investor to effect purchase and acquire the Merger Investor Shares hereunder shall be subject to the fulfillment at or prior to the Closing Date of the following conditionsconditions that:
(a1) All representations and warranties and other statements of the Company shall be true and correct as of and on each of the date of this Agreement and the transactions contemplated hereby date of the Closing;
(2) The Company shall have performed all of its obligations hereunder theretofore to be performed;
(3) The Prospectus shall have been approved and adopted by filed with the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(bCommission pursuant to Rule 424(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Securities Act shall have expired or been terminated;
(d) within the Registration Statement shall have become effective in accordance with the provisions of the Securities Actapplicable time period prescribed for such filing, and no stop order suspending such the effectiveness of the Registration Statement or any part thereof shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted initiated or threatened by the SEC or any state regulatory authoritiesCommission, and the Investor shall have received the Prospectus in accordance with the federal securities laws;
(e4) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger The Company shall have been issued executed and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, delivered that certain Funding and no statute, rule or regulation shall have been enactedRoyalty Agreement, by any state or federal government or governmental agency in and between the United States which would prevent Company and Deerfield ED Corporation (“ED”), of even date herewith (the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders “Funding and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Royalty Agreement”); and
(i5) all required material consents The Company shall have shall have executed and approvals of lenders who have advanced $5,000,000 or more to Parent or delivered that certain Option and Put Agreement, by and between the Company ED and lessors the Investors, of material leases shall have been obtained even date herewith (the “Option and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvalsPut Agreement”).
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the (b) The obligation of the Company to effect the Merger enter into this Agreement shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditionsconditions that:
(a1) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the All representations and warranties and other statements of Parent and Subsidiary contained in this Agreement the Investors shall be true and correct in all material respects as of and on and as each of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger this Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to ParentClosing;
(e2) since the date hereof, there The Investors shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effectperformed all of its obligations hereunder theretofore to be performed;
(f3) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby ED shall have been obtained executed and be in effect at delivered the Closing Date, Funding and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16Royalty Agreement; and
(i4) The parent Investors and ED shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent executed and Subsidiary to Effect delivered the Merger. Unless waived by Parent Option and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Put Agreement.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of 3.01 Completion is conditional upon the following conditions:conditions being satisfied on or before 31 December 2007 (the “Longstop Date”):
(a) the obtaining in terms acceptable to the Purchaser, of all consents, approvals, clearances and authorisations of any relevant governmental authorities or other relevant third parties in Japan, the PRC or any other part of the world as may be necessary for the execution and implementation of this Agreement;
(b) the Target Companies receiving all relevant consents and approvals from third parties as may be necessary in connection with the proposed change in shareholding of the Target Companies so as to ensure that the Target Companies maintains all its existing contractual and other rights following the transfer of the Sale Interests (including, without limitation, the consent of the existing bankers of the Target Companies to continue to provide the existing banking facilities to the Target Companies following the transfer of the Sale Interests);
(c) the passing at an extraordinary general meeting of the Vendor of ordinary resolution(s) approving this Agreement and the transactions contemplated hereby shall have been approved and adopted by this Agreement by the requisite vote shareholders of the stockholders of the Company under applicable law and applicable listing requirements;
Vendor (b) the shares of Parent Common Stock issuable in the Merger excluding such shareholders who shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable be required to the consummation of the Merger abstain from voting under the HSR Act shall have expired or been terminatedListing Rules);
(d) the Registration Statement shall have become effective in accordance with the provisions passing at an extraordinary general meeting of the Securities Act, Purchaser of ordinary resolution(s) approving this Agreement and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted the transactions contemplated by this Agreement by the SEC or any state regulatory authorities;shareholders of the Purchaser (excluding such shareholders who shall be required to abstain from voting under the Listing Rules); and
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation completion of the Merger shall Jetup Agreement becoming unconditional in all respects (save in respect of any condition relating to completion of this Agreement).
3.02 The Vendor will use all reasonable endeavours (so far as it lies within its powers) to procure the satisfaction of the Conditions as soon as reasonably practicable and in any event before the Longstop Date and will promptly notify the Purchaser when each of the said Conditions have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvalssatisfied.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on If at any time the Vendor becomes aware of a fact or prior to circumstance that might prevent a Condition being satisfied, it will immediately inform the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;Purchaser.
(b) If at any time the Company shall have received an opinion Purchaser becomes aware of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPa fact or circumstance that might prevent a condition being satisfied, special counsel to it will immediately inform the Company, in form and substance reasonably satisfactory to the Company, effective as Vendor.
3.04 If any of the Closing Conditions have not been satisfied on or before the Longstop Date then this Agreement will immediately terminate and based on representations all rights and obligations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion parties shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16cease immediately upon termination.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Nam Tai Electronics Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective The several obligations of each party the Underwriters to effect the Merger shall purchase and pay for any issue of Purchased Securities hereunder will be subject to the fulfillment at or prior accuracy of the representations and warranties on the part of the Company herein, to the Closing Date performance by the Company of its obligations hereunder and to the following conditionsadditional conditions precedent:
(a) this Agreement and Subsequent to the transactions contemplated hereby shall have been approved and adopted by the requisite vote execution of the stockholders Terms Agreement there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the business or properties of the Company under applicable law and applicable listing requirements;or its subsidiaries which, in the judgment of a majority in interest of the Underwriters (including any Representatives), materially impairs the investment quality of the Purchased Securities or (ii) any downgrading in the rating of the Company’s debt securities or preferred stock by ▇▇▇▇▇’▇ Investors Service, Inc., Standard & Poor’s Financial Services LLC or Fitch Ratings Ltd.
(b) No stop order suspending the shares effectiveness of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness or any notice that would prevent its use shall have been issued and remain in effect and no proceeding proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Underwriters, shall be contemplated by the SEC Commission.
(c) The Underwriters shall have received the following:
(1) Letters of (A) PricewaterhouseCoopers LLP and (B) Deloitte and Touche LLP dated the date of the Terms Agreement and the Closing Date, in form and substance satisfactory to you, with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus.
(2) An opinion of the General Counsel or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation Assistant General Counsel of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letterCompany, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached A hereto; --------------.
(d3) the Company shall have received "comfort" letters in customary form from Coopers & A letter of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Inc. (or other nationally recognized investment banking firm reasonably acceptable counsel to the Parent) an opinion reasonably acceptable Company, dated as of the Closing Date, to the Parenteffect set forth in Exhibit B hereto.
(4) An opinion or opinions of counsel for the Underwriters as to such of the matters stated in clauses (2) and (3) above as you shall request.
(5) A certificate of any one of the Chief Executive Officer, Chief Financial Officer, General Counsel, the Corporate Secretary, the Controller or any Assistant Corporate Secretary of the Company, dated the Closing Date, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission, and that, subsequent to the dates of the most recent financial statements in the Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the business, financial position or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the General Disclosure Package and the Prospectus or as described in such certificate.
(6) Certificates, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed signed by the Chief Financial Officer or the Controller of the Company, with respect to Parentcertain financial data contained in or incorporated by reference in each of the General Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Underwriters.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect 2.1 Completion is conditional upon the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at fulfilment or prior to the Closing Date waiver (if applicable) of the following conditions:conditions (“Conditions”):
(a) (i) no indication being received prior to Completion from the Stock Exchange to the effect that the listing of the Subscription Shares on the Main Board of Stock Exchange shall or may be withdrawn or objected to, and (ii) the Stock Exchange have not indicated that the trading of the Shares on the Stock Exchange will be suspended, cancelled or withdrawn before the Completion or that it will object to, or it will impose conditions on, the continued listing of the Shares on the Stock Exchange based on reasons arising from the transactions contemplated in this Agreement;
(b) the listing committee of the Stock Exchange granting listing of and permission to deal in the Subscription Shares and such listing and permission not subsequently revoked prior to Completion (the “Listing Approval”);
(c) the passing of the relevant resolutions by way of poll at the Shareholders’ Meeting who are entitled to vote and who are not required to abstain from voting under the Listing Rules and other applicable laws and regulations for approving this Agreement and the transactions contemplated hereby shall have been approved hereunder (including the allotment and adopted by the requisite vote issue of the stockholders of the Company Subscription Shares under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminateda specific mandate);
(d) with respect to Subscriber’s obligations to consummate the Registration Statement shall have become effective Completion only, the Warranties made or given by the Company set forth in accordance with the provisions Clause 3.1 of SCHEDULE 1 to this Agreement are true, accurate, and not misleading in all respects as of the Securities Act, date hereof and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by as of the SEC or any state regulatory authoritiesCompletion Date;
(e) no preliminary with respect to Subscriber’s obligations to consummate the Completion only, any other Warranties made or permanent injunction or other order or decree given by any federal or state court which prevents the consummation Company under this Agreement (except for those set forth in Clause 3.1 of SCHEDULE 1 to this Agreement) are true, accurate and not misleading in all material respects as of the Merger shall have been issued date hereof and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)as of the Completion Date;
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required with respect to Subscriber’s obligations to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereofCompletion only, there shall have not been no changes that haveany material adverse change (or effect) in the financial, and no event business or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation trading position of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the MergerGroup immediately before Completion;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not Offering Completion having taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16place; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company subscription of the Subscription Shares will not cause the Subscriber Group to breach the Creeper Limit.
2.2 None of the Parties shall have delivered the right to Parent waive any of the Conditions under Clauses 2.1(a), 2.1(b), 2.1(c), 2.1(g) and 2.1(h). The Subscriber may in its audited consolidated financial statements for absolute discretion at any time before Completion waive the year ended December 31Conditions under Clauses 2.1(d), 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements 2.1(e) and 2.1(f) in part of in full by notice in writing to the Company.
2.3 The Parties shall reflect earnings which use their reasonable endeavours to procure the fulfilment of the Conditions set out in Clause 2. Each Party agrees and undertakes to notify the other Party in writing as soon as practicable after it becomes aware that a Condition has been fulfilled or is incapable of fulfilment.
2.4 In the event that the Conditions are not materially less than fulfilled or waived (if applicable) on or before the average Long Stop Date, this Agreement shall terminate and the obligations of the published projections Parties shall immediately cease and be null and void and none of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, Parties shall have delivered a letter, dated any right against or liability towards the Closing Date, addressed to Parent, other Party arising out of or in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16connection with this Agreement.
Appears in 1 contract
Sources: Subscription Agreement
Conditions. SECTION 8.1 Conditions The Bank’s obligations to Each Party's Obligation to Effect extend credit under the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be Loan are subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) this Agreement and the transactions contemplated hereby There shall have been approved and adopted by the requisite vote be no Event of the stockholders Default or condition or event which, after notice or lapse of the Company under applicable law and applicable listing requirementstime or both, would constitute such an Event of Default;
(b) the shares of Parent Common Stock issuable in the Merger The Bank shall have been authorized for listing on Nasdaq upon official notice of issuancereceived from counsel to the Borrower favorable opinions as to all matters reasonably requested by the Bank, in form and substance mutually agreeable to the Borrower and the Bank;
(c) the waiting period applicable The Borrower shall deliver to the consummation Bank duly executed Loan Documents and all other documents or instruments which the Bank shall require in connection with extension of the Merger credit under the HSR Act shall have expired or been terminatedLoan;
(d) the Registration Statement The Borrower shall have become effective in accordance with the provisions of the Securities Act, received and no stop order suspending such effectiveness shall have been issued provided to the Bank evidence of all necessary approvals of federal and remain in effect state regulatory agencies if required regarding the Loan and no proceeding for that purpose shall have been instituted the payment of dividends by the SEC or any state regulatory authoritiesBank Subsidiaries to the Borrower to make all payments under the Loan;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents The Borrower shall use the consummation entire loan amount to fund the cash portion of the purchase price to be paid in the merger of The Peoples BancTrust Company, Inc. into the Borrower pursuant to the Agreement and Plan of Merger shall have been issued between the Borrower and remain in effect (each party agreeing to use its reasonable efforts to have The Peoples BancTrust Company, Inc. dated May 21, 2007, and any such injunction, order or decree lifted)expenses associated with the Loan;
(f) no action The Borrower shall have been takencontinue to fulfill all of the terms, representations, warranties, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation covenants of the Merger or make the consummation of the Merger illegalLoan Documents;
(g) all governmental waivers, consents, orders and approvals legally required for Neither the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required Borrower nor any Bank Subsidiary shall be subject to consummate the Merger, shall have been obtained and be in effect at the Effective Timeany regulatory formal enforcement action;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, The Bank shall have delivered a letter, dated conducted an on-site investigation and review of the Closing Date, addressed to Parent, Borrower and shall have been satisfied in form its sole discretion with its findings and substance reasonably satisfactory to Parent, stating that of the Merger will qualify as a pooling-of-interests transaction under APB 16; andcondition of the Borrower;
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company The Bank shall have received a certificate of the Chairman president, a vice president, or other officer(s) of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the CompanyBorrower, in form and substance reasonably satisfactory mutually agreeable to the CompanyBorrower and the Bank, effective stating (i) that all representations and warranties contained in this Agreement and in all other Loan Documents are true and accurate as of the Closing Date and based on representations date of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the CodeClosing; (ii) Parentthat there exists no Event of Default under this Agreement or under any other Loan Document, Subsidiary and Company will each be a party to or any condition or event which with the reorganization within giving of notice or the meaning passage of Section 368(b) time, or both, would become an Event of the CodeDefault under this Agreement or under any other Loan Document; and (iii) the stockholders of the Company will not recognize gain any other fact or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, representation reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received requested by the stockholders of the Company Bank in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16its sole discretion; and
(ij) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent Borrower and each Bank Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in material compliance with all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such datelaws, regulations, orders, memoranda, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory requirements applicable to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16them.
Appears in 1 contract
Conditions. SECTION 8.1 6.1 Conditions to Each Partyof Getty's and PTI's Obligation to Effect the MergerMergers. Unless waived by the parties, the The respective obligations of each party Getty and PTI to effect the Merger shall Mergers will be subject to the fulfillment or waiver by both parties at or prior to the Closing Date of the following conditions:
(a) The Getty Merger and this Agreement and the transactions contemplated hereby shall have been validly approved and adopted by (i) the requisite affirmative vote of the stockholders holders of the Company under applicable law and applicable listing requirements;
(b) the at least that number of outstanding shares of Parent Getty Common Stock issuable in required to approve the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Getty Merger under the HSR Act shall have expired or been terminated;
DGCL and Getty's certificate of incorporation and (dii) the Registration Statement shall have become effective in accordance with the provisions affirmative vote of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation holders of a majority of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order Getty Common Stock not held or decree lifted);
(f) no action shall have been taken, and no statute, rule directly or regulation shall have been enacted, indirectly controlled by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & Messrs. Leo ▇▇▇▇▇▇▇▇▇, ▇▇lt▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇ Milt▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent their spouses and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
affiliated trusts (d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statementcollectively, the effective date of "Principal Holders") voting on the Registration Statement Getty Merger and this Agreement at the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues meeting referred to in Section 5.2 (the "Getty Stockholder Approvals"); (b) The PTI Merger and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there this Agreement shall have been no changes validly approved and adopted by (i) the affirmative vote of the holders of at least that havenumber of LP Units required to approve the PTI Merger under the NLPA and the Partnership Agreement and (ii) the affirmative vote of the holders of a majority of the LP Units not held or directly or indirectly controlled by the Principal Holders voting on the PTI Merger and this Agreement at the unitholders' meeting referred to in Section 5.2 (the "PTI Unitholder Approvals"); (c) Neither Getty nor PTI shall be subject to any order, decree, ruling or injunction of a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, and no event or events shall have occurred which have resulted in or havelaw, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required promulgated or enacted by Section 7.4;
(e) since the date hereofa governmental or regulatory authority, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for prohibits the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule by this Agreement or regulation which, when taken together with all such promulgations, would materially otherwise impair the value ability of Holdings to Parent operate the business of Getty and PTI on a consolidated basis following the MergerClosing;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Sources: Merger Agreement (Power Test Investors LTD Partnership)
Conditions. SECTION 8.1 Conditions 4.1.1 The sale, purchase and transfer of the Properties are to Each Party's Obligation to Effect only take effect upon the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date fulfilment of the following conditions:conditions precedent (“Conditions Precedent”):
(a) this Agreement the Vendor obtaining the approvals in writing from JPA and PTP for the transactions contemplated hereby shall have been approved sale and adopted by the requisite vote transfer of the stockholders of Properties to the Company under applicable law and applicable listing requirementsPurchaser;
(b) the shares Vendor obtaining the approval in writing from the Johor State Authority to the sale and transfer of the Properties to the Purchaser, as there is a restriction in interest on the title to the Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;Land that requires State Authority approval; and
(c) the waiting period applicable Purchaser obtaining the approval in writing from the Economic Planning Approval (if applicable) and approval in writing pursuant to Section 433B of the National Land Code 1965 from the Johor State Authority (if applicable) for the transfer of the Properties to the consummation Purchaser. The approvals referred to in clause 4.1.1(a), (b) and (c) are hereinafter collectively referred to as “Approvals” and separately as “Approval”.
4.1.2 For the avoidance of any doubt:
i) the Vendor shall submit the applications to procure the fulfilment of the Merger under conditions set out in clauses 4.1.1(a) and (b) within fourteen (14) Business Days from the HSR Act date of this Agreement at the Vendor’s costs and expenses provided always that the Purchaser shall have expired or been terminated;use its best endeavours to assist and furnish all such information and documents relating to the Purchaser as may be required by the Public Authorities; and
(dii) the Registration Statement Purchaser shall have become effective submit the applications to procure the fulfilment of the conditions set out in clauses 4.1.1(c) within fourteen (14) Business Days from the date of this Agreement at the Purchaser’s costs and expenses provided always that the Vendor shall use its best endeavours to assist and furnish all such information and documents relating to the Vendor as may be required by the Public Authorities. Save for events of Force Majeure, in the event either Party shall fail to submit the applications referred to in (i) and (ii) above within the time frames stated herein for reasons not attributable to the other Party, the other Party shall be entitled to give the defaulting Party seven (7) Business Days’ notice in writing to remedy the breach, failing which the remedies as provided in clause 10.1.1 and 10.1.2 shall apply as is applicable.
4.1.3 The Conditions Precedent are to be fulfilled within three (3) months from the date of this Agreement (“Conditional Period”) subject to an automatic extension of three (3) months (“Extended Conditional Period”) in the event the Conditions Precedent cannot be fulfilled within the Conditional Period. Any further extensions shall be with mutual consent of both parties and subject to terms to be agreed upon which extension is to be confirmed in writing no later than fourteen (14) days prior to the expiry of the Extended Conditional Period.
4.1.4 In the event the Conditions Precedent are not fulfilled prior to the expiry of the Conditional Period or the Extended Conditional Period, as applicable for reasons attributable to the Purchaser or delay on the part of the Purchaser and no further extension of time is mutually agreed, the Deposit paid to the Vendor’s Solicitors shall forthwith be forfeited and the Vendor’s Solicitors are hereby irrevocably authorised to forthwith release the same to the Vendor together with all interest accruing. If the Conditions Precedent are not fulfilled within the Conditional Period or Extended Conditional Period for reasons not attributable to the Purchaser and no further extension of time is mutually agreed, the Deposit shall be refunded to the Purchaser free of interest. For the avoidance of any doubt, in the event that any of the Approvals is granted by the relevant Public Authority with terms and conditions that are not in accordance with the provisions of the Securities Act, general and no stop order suspending such effectiveness shall have been issued and remain usual conditions currently imposed in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger similar transactions and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- same are not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) Vendor or the Purchaser, the Affected Party shall be given the opportunity to appeal to the relevant authority in accordance with respect clause 4.4 failing which clause 4.5 shall be applicable. In the event of this occurrence this shall not constitute a non-fulfilment of the Conditions Precedent for reasons attributable to certain financial statements and other financial information included in either the Registration Statement and any subsequent changes in specified balance sheet and income statement itemsPurchaser or the Vendor.
4.1.5 Subject to clause 4.1.4 above, including total assets, working capital, total stockholders' equity, total revenues the Purchaser and the total Vendor shall comply with all terms and per share amounts of net income related conditions attached to Parent;
(e) since the date hereof, there shall have been no changes that have, Approvals referred to in clause 4.1.1 above and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, to the terms and approvals legally required for the consummation conditions of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Lease Annexures.
Appears in 1 contract
Sources: Agreement for Sale of Sub Lease (STR Holdings, Inc.)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger The Closing shall be subject to the fulfillment at satisfaction or prior waiver of the conditions set forth in this Section 3.
3.1. The following are conditions to the Closing Date obligation of the following conditionsContributors to close the Transactions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote all of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary the Ivanhoe Contributee contained in this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effectDate;
(b) on Closing, the Company Ivanhoe Contributee shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as complied with or performed all of the Closing Date and based on representations material terms, covenants or conditions of the Company and Parent, this Agreement to the effect that (i) the Merger of Subsidiary be complied with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Codeor performed by it; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------and
(c) the Company shall have received an opinion or opinions from Contributors, acting reasonably, are satisfied that the transactions provided for in the St. Enoch/▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇Purchase Agreement shall be completed not later than the date of the Closing, provided that if the reason for such condition not being satisfied is default by any ▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated Entity under the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & St. Enoch/▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇Purchase Agreement, this condition shall be deemed to have been satisfied. The conditions contained in this Section 3.1 are intended solely for the benefit of the Contributors. If any of the foregoing conditions is not satisfied on or prior to the Scheduled Closing Date (or any earlier time, if such earlier time is specified in respect of such condition), the Contributors shall have the right, in their sole and absolute discretion, to waive the condition in question and proceed to Closing hereunder or terminate this Agreement by delivering notice of such termination to the Ivanhoe Contributee and after such termination neither the Contributors nor the Ivanhoe Contributee shall have any further rights or obligations under this Agreement, except for such rights and obligations which expressly survive the termination of this Agreement, unless the reason for the condition not being satisfied is a breach by the Ivanhoe Contributee of any its obligations under this Agreement or a representation and warranty made by the Ivanhoe Contributee being incorrect or inaccurate, in which case the provisions of Section 5 shall be applicable.
3.2. The following are conditions to the obligation of the Ivanhoe Contributee to close the Transactions:
(a) all of the Contributors’ representations and warranties contained in this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date;
(b) on Closing, the Contributors shall have transferred to the Ivanhoe Contributee the Spanish Interests, subject only to the Permitted Encumbrances, the Contributors shall have complied with Section 4 in all material respects, and each Contributor shall have otherwise complied with or performed all of the other material terms, covenants and conditions of this Agreement to be complied with or performed by it;
(c) prior to the expiry of the Due Diligence Period, the Ivanhoe Contributee, acting in its sole and absolute discretion, shall not have delivered a termination notice pursuant to Section 2.12(c); and
(d) the Ivanhoe Contributee, acting reasonably, is satisfied that the transactions provided for in the St. Enoch/▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent ▇▇▇▇▇ Purchase Agreement shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated be completed not later than the date of the Proxy StatementClosing, provided that if the effective date reason for such condition not being satisfied is default by any Affiliate of Ivanhoe under the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from St. Enoch/▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇Purchase Agreement, Inc. this condition shall be deemed to have been satisfied. The conditions contained in this Section 3.2 are intended solely for the benefit of the Ivanhoe Contributee. If any of the foregoing conditions is not satisfied on or prior to the Scheduled Closing Date (or other nationally recognized investment banking firm reasonably acceptable an earlier time, if such earlier time is specified in respect of such condition), the Ivanhoe Contributee shall have the right, in its sole and absolute discretion, to waive the condition in question and proceed to the Parent) an opinion reasonably acceptable Closing hereunder or to terminate this Agreement by delivering notice of such termination to the Parent, dated as of Contributors and after such termination neither the date on which Contributors nor the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company Ivanhoe Contributee shall have delivered to Parent its audited consolidated financial statements any further rights or obligations under this Agreement, except for such rights and obligations which expressly survive the termination of this Agreement, unless the reason for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding condition not being satisfied is a breach by any Contributors of any of their obligations under this Agreement or a representation or warranty made by such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations party being incorrect or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parentinaccurate, in form and substance reasonably satisfactory to Parent stating that which case the Merger will qualify as a pooling-of-interests transaction under APB 16provisions of Section 5 shall be applicable.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions Anything to Each Partythe contrary herein notwithstanding, Buyer's Obligation obligation to Effect purchase the Merger. Unless waived by Property shall be expressly conditioned upon the parties, the respective obligations fulfillment of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditionsconditions precedent (collectively, the "Buyer's Conditions Precedent") on or before the Closing Date:
(a) this Agreement and the transactions contemplated hereby Buyer shall have been approved received surveys, title commitments, and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementssuch other property documents, as Buyer shall have reasonably required to be delivered;
(b) the shares of Parent Common Stock issuable in the Merger Seller shall have been authorized for listing on Nasdaq upon official notice of issuancedelivered tenant estoppel certificates or reliance letters from such Tenants as Buyer shall have required;
(c) the waiting period applicable Without duplication of Section 3.2(b) hereof, Seller shall have delivered estoppel certificates from such parties to the consummation reciprocal easement and operating agreements affecting any portion of the Merger under the HSR Act Property, as Buyer shall have expired or been terminatedreasonably required;
(d) the Registration Statement Buyer shall have become effective in accordance with the provisions received such written approvals of the Securities Acttransfer of the Property from such governmental authorities as may be required for such transfer and continued use and operation thereof by Buyer (including without limitation, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authoritiesconsent of the Industrial Development Agency of Seneca County);
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents Seller shall have delivered (i) if there is a third party property manager, a final lien waiver from the consummation property manager for each portion of the Merger shall have been issued Property or (ii) if there is no third party property manager, a certification whereby Seller represents and remain in effect (warrants to Buyer that there is no third party property manager for each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)portion of the Property;
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as As of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion Seller shall not have commenced (within the meaning of any Bankruptcy Law) a voluntary case, nor shall any involuntary case have been withdrawn;
(h) commenced against Seller, nor shall Seller have consented to the Company appointment of a Custodian of it or for all or any substantial part of its property, nor shall a court of competent jurisdiction have delivered to Parent entered an order or decree under any Bankruptcy Law that is for relief against Seller in an involuntary case or which appoints a Custodian of Seller for all or any substantial part of its audited consolidated financial statements property. The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state law for the year ended December 31relief of debtors. The term "Custodian" means any receiver, 1996trustee, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statementsassignee, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations liquidator or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction similar official under APB 16.any Bankruptcy Law;
Appears in 1 contract
Sources: Purchase and Sale Agreement (Chelsea Gca Realty Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall This Agreement may be subject to the fulfillment terminated at any time on or prior to the Closing Date of the following conditionsDate:
(aA) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote By mutual consent of the stockholders of the Company under applicable law Corporation and applicable listing requirementsBuyer;
(bB) By Buyer, if (i) there has been a material misrepresentation or breach on the shares part of Parent Common Stock issuable the Corporation with respect to any material representations or warranties set forth herein, or (ii) there has been any material failure on the part of the Corporation to comply with any material obligations or to perform any material covenants hereunder, which failure, if capable of remedy, has not been remedied within 30 days after receipt by the Corporation of notice thereof, or (iii) any of the conditions set forth in the Merger Section 5.1 shall not have been authorized for listing fulfilled on Nasdaq upon official notice or prior to March 31, 1999 (other than by virtue of issuance;
a breach of this Agreement by the Buyer) and the fulfillment thereof shall not have been waived by Buyer, or (civ) a Qualified Overbidder is the waiting period applicable successful bidder at an Auction held pursuant to the consummation of Overbid Procedures Order, or (v) for any reason whatsoever, the Merger under Bankruptcy Court has not (x) entered an Order granting the HSR Act shall have expired or been terminated;
Assumption Motion and an Order granting the Overbid Procedures Motion (d) in each case satisfactory to the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, Buyer and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P.) by the date falling 30 days after the Petition Date or (y) entered the Sale Order by the date falling 120 days after the Petition Date; or
(C) By the Corporation, certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
if (i) all required there has been a material consents and approvals misrepresentation or breach on the part of lenders who have advanced $5,000,000 Buyer in any of its material representations or more warranties set forth herein, or (ii) there has been any material failure on the part of Buyer to Parent comply with any of its material obligations or to perform any material covenants hereunder which failure, if capable of remedy, has not been remedied within 30 days after receipt by the Company and lessors Buyer of material leases notice thereof, or (iii) any of the conditions set forth in Section 5.2 shall not have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed fulfilled on or prior to March 31, 1999 (other than by virtue of a breach of this Agreement by the Closing Date Corporation) and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion fulfillment thereof shall not have been withdrawn waived by the Corporation, or modified in any material respect, substantially in (iv) a Qualified Overbidder is the form of Exhibit 8.2(b); --------------
(c) the Company shall have received successful bidder at an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory Auction held pursuant to the Company substantially in Overbid Procedures Order, or (v) for any reason whatsoever, the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) Bankruptcy Court has not entered the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated Sale Order by the date of falling 120 days after the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Petition Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vimrx Pharmaceuticals Inc)
Conditions. SECTION 8.1 2.1 Completion of this Agreement is subject to the Conditions to Each Party's Obligation to Effect being satisfied or waived in accordance with the Merger. Unless terms of this Agreement.
2.2 If any of the Conditions (except for the condition stipulated in section 7 of Schedule 2) have not been satisfied or waived by the partiesLong-stop Date and the Buyer notifies the Seller in writing on or after the Long-stop Date that it wishes to terminate this Agreement, then this Agreement (except for the provisions set out in Clause 2.3) shall terminate with effect from the date of the relevant notification and the Seller shall indemnify the Buyer and keep it indemnified against all claims, damages, losses, costs (including legal and other professional costs reasonably incurred) and liabilities whatsoever, which may arise directly out of or be occasioned or suffered in consequence of, or in connection with, the respective obligations above termination.
2.3 The following provisions shall continue to have effect, notwithstanding termination of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditionsthis Agreement in accordance with Clause 2.2:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementsClause 1;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuanceClause 2.2 and Clause 2.3;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;Clause 7
(d) Clause 12;
(e) Clause 13;
(f) Clause 14;
(g) Clause 15;
(h) Clause 21;
(i) Clause 22; and
(j) Clause 23.
2.4 The Seller shall procure that all the Registration Statement shall have become effective Conditions are satisfied as soon as practicable after the date of this Agreement and in any event no later than the Long-stop Date.
2.5 The Buyer and the Seller (including the Bareboat Charterer in accordance with the provisions of Clause 25) shall cooperate fully in all actions necessary to procure the Securities Actsatisfaction of the Conditions, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC Pre-Completion Undertakings including, but not limited to, the provision of all information reasonably necessary to make any notification or any state regulatory authorities;
(e) no preliminary filing or permanent injunction or other order or decree as requested by any federal or state court which prevents relevant authority, obtain the consummation required Consents as provided in Clause 25, keeping the other Party informed of the Merger shall have been issued progress of any notification or filing and remain in effect (each party agreeing providing such assistance as may reasonably be required.
2.6 The Buyer may, to use its reasonable efforts such extent as it thinks fit and is legally entitled to have do so, waive any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger Conditions (or make them conditions subsequent as the consummation case may be) in relevant paragraphs of the Merger illegal;Schedule 2.
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent 2.7 Pending Completion or the Company and lessors earlier termination of material leases shall have been obtained and be this Agreement in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Companyaccordance with its terms, the obligation of Seller shall comply with the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a poolingPre-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Completion Undertakings.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect As of the Merger. Unless waived time of the purchase of the Securities by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditionsPurchasers:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote each of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent set forth in Section 6 hereof and Subsidiary contained in this Agreement the other Operative Documents shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such time, except to the extent the same relate expressly to an earlier date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, be in form and substance reasonably satisfactory to the Company, effective as compliance with all of the Closing Date terms and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional sharesconditions hereof, and such opinion no Default or Event of Default shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------occurred and be continuing hereunder;
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory simultaneously sold to the Company substantially in Purchasers the form set forth in Exhibit 8.2(c) attached hereto; --------------Securities to be purchased by the Purchasers hereunder at the Closing;
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent made all filings under all applicable federal and Subsidiary, dated state securities laws necessary to consummate the date issuance of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or Securities pursuant to this Agreement in compliance with such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parentlaws;
(e) since the date hereofpurchase and sale of the Securities shall not violate any order, there shall have been no changes that havejudgment or decree of any court or other authority or any provision of law or regulation applicable to the Agent or any Purchaser (including, without limitation, Regulation U of the Board of Governors of the Federal Reserve System, the Securities Act and no event or events shall have occurred which have resulted the Securities Exchange Act) as then in or have, a Parent Material Adverse Effecteffect;
(f) all governmental waiversthe Company, consents, orders, and approvals legally required for the consummation of the Merger Senior Bank Agent and the transactions contemplated hereby Senior Lenders shall have entered into the Senior Credit Agreement and all conditions to its effectiveness shall have been obtained satisfied and no default or event of default shall have occurred and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Mergercontinuing thereunder;
(g) the Company Purchasers shall have received approval from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized each of their respective investment banking firm reasonably acceptable committees to Parent) an opinion, dated as of purchase the date on which the Proxy Statement Securities and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawnenter into this Agreement;
(h) Deloitte & Touche LLPsince December 31, independent public accountants for the Company, 2003 there shall have delivered a letterbeen no change in the financial condition, dated the Closing Dateoperating results, addressed to the Companyassets, in form and substance reasonably satisfactory to the Companyoperations, stating that business prospects, results, assets, operations, business prospects, employee relations or customer or supplier relations of the Company has not taken or any action that of its Subsidiaries which would affect the ability to account for the Merger as have a pooling-of-interests transaction under APB 16Material Adverse Effect; and
(i) The parent Agent and the other Purchasers shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), completed a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties due diligence review of the Company contained in this Agreement and its Subsidiaries and their respective records, financial condition and operations, which due diligence review shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement Agent and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included Purchasers in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16their sole discretion.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Morton Industrial Group Inc)
Conditions. SECTION 8.1 Conditions PRECEDENT 2.1 Anthem's obligations to Each Party's Obligation carry out the terms of this Agreement and to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be complete its transactions contemplated under this Agreement are subject to the fulfillment at or prior fulfilment to the Closing Date reasonable satisfaction of Anthem of each of the following conditionsconditions that:
(a) on or before 18 May 2000 (the "SUBJECT REMOVAL DATE"), Anthem shall have been able to complete Anthem's Investigation (defined below) with results to its reasonable satisfaction; (b) on or before the Subject Removal Date, the directors and the shareholders of Anthem shall have approved this Agreement and all the transactions of Anthem contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
hereunder; (c) on or before the waiting period applicable to Subject Removal Date, the consummation shareholders of the Merger under the HSR Act Anthem shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered approved a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, stock option plan substantially in the form of Exhibit 8.2(bSCHEDULE A to this Agreement (the "STOCK OPTION PLAN"); --------------
(c) , stock option agreements between Anthem and each of the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company Executive Directors substantially in the form set forth of SCHEDULE B and SCHEDULE C to this Agreement (the "STOCK OPTIONS"), and a registration rights agreement substantially in Exhibit 8.2(c) attached heretothe form of SCHEDULE D to this Agreement (the "REGISTRATION RIGHTS AGREEMENT"), all to be effective upon Completion; --------------
(d) at the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date Time of the Proxy StatementClosing, the effective date solicitors for each of the Registration Statement UDATE, III, Atlas, Tavendish, Ryley and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there Shortland Trustees shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, provide opinions dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth indicated in Exhibit 8.3(b) attached heretoSCHEDULE E to this Agreement (collectively the "UDATE SOLICITOR OPINIONS"); --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since as of the date hereofTime of Closing, there Atlas, EBT, the Minority Shareholders, UDATE, III and the Executive Directors (collectively, the "UDATE GROUP") shall have not be in material default of any of their respective covenants and agreements contained in this Agreement; (f) as of the Time of Closing, the representations and warranties of each of the UDATE Group contained in this Agreement or contained in any certificates or documents delivered by any of them pursuant to this Agreement shall be true and accurate in all material respects as if such representations and warranties had been made as of the Time of Closing; (g) as of the Time of Closing, no changes that havematerial adverse change in the financial or trading position or prospects (including, and no event without limitation, any adverse change in respect of turnover, profits, liabilities or events expenses of UDATE) shall have occurred which have resulted in or have, a Company Material Adverse Effect;
relation to UDATE since the Effective Date; and (fh) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders Time of ParentClosing, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company Anthem shall have delivered to Parent its audited consolidated financial statements completed the Financing. The conditions set forth above are for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than exclusive benefit of Anthem and may be waived by Anthem in whole or in part at any time at or before the average Time of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Closing.
Appears in 1 contract
Sources: Share Exchange Agreement (Anthem Recording West Inc)
Conditions. SECTION 8.1 Section 7.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the ---------------------------------------------------------- The respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date Effective Time of the following conditions:
(a) 2,000,000 Common Shares shall have been purchased pursuant to the Offer;
(b) if required by applicable Law, this Agreement and the transactions contemplated hereby Merger shall have been approved and adopted by the requisite vote votes of the stockholders respective shareholders of Allied at the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized Shareholders Meeting called for listing on Nasdaq upon official notice of issuancesuch purpose;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;terminated and, other than the filings provided for in subclauses (a) and (b) of the second sentence of Section 2.3, all Governmental Approvals and other Consents or Filings which the parties have agreed are required to be obtained prior to the Effective Time shall have been obtained and not rescinded or adversely modified or limited (as set forth in the proviso below) or, if merely required to be filed, such filings shall have been made and accepted, and all waiting periods prescribed by applicable Law shall have expired or been terminated in accordance with applicable Law; provided that -------- no such Governmental Approval or other Consent or Filing shall contain any conditions or limitations that compel or seek to compel the Surviving Corporation to dispose of or to hold separately all or any material portion of the Business or Assets of the parties and their respective Subsidiaries taken as a whole or that impose or seek to impose any material limitation on the ability of the Surviving Corporation and the Allied Subsidiaries, taken as a whole, to conduct its Business or own its Assets after the Effective Time in substantially the same manner as the parties and their respective Subsidiaries presently conduct their Business or own their Assets; and
(d) the Registration Statement no Order entered or Law promulgated or enacted by any Governmental Entity shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain be in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of any other material transactions completed hereby, and no Proceeding brought by a Governmental Entity shall have been commenced and be pending which seeks to restrain, enjoin, prevent, or materially delay or restructure the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the or any other material transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Sources: Merger Agreement (Allied Group Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations The obligation of each party Lender to effect the Merger shall be make a Loan hereunder is subject to the fulfillment at or prior accuracy, as of the date hereof, of the representations and warranties herein contained and to the Closing Date satisfaction of the following further conditions:
(a) this Agreement and the transactions contemplated hereby The Administrative Agent shall have been approved received (i) this Agreement, executed and adopted delivered by the requisite vote of the stockholders of the Company under applicable law Agents and applicable listing requirements;Gannett and (ii) an Addendum, executed and delivered by each Lender listed on Schedule 1.1.
(b) On the shares date of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
Borrowing (i) all required material consents and approvals no Default or Event of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases Default shall have been obtained occurred and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents continuing and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(aii) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement Sections 3.1, 3.5 and 3.7 shall be true and correct in all material respects on and as of the such date made and on and as of the Closing Date as if made at on and as of such date.
(c) On or prior to the date of the first Borrowing hereunder, and the Company there shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary been delivered to that effect;
(b) the Company shall have received each Lender an opinion from Nixon Peabody LLP, counsel to Gannett, in substantially the form of ▇▇▇▇b▇▇ ▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPreto. In rendering the foregoing opinion, special such counsel may rely upon certificates of officers of Gannett and its Subsidiaries as to the Companyfactual matters, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that including (i) the Merger of Subsidiary with nature and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) location of the Code; property of Gannett and of its Subsidiaries, (ii) Parentagreements and instruments to which Gannett and/or its Subsidiaries are a party, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders conduct of the Company will not recognize gain or loss as a result business of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, Gannett and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------its Subsidiaries.
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated On or prior to the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereoffirst Borrowing hereunder, there shall have been no changes that havedelivered to each Lender a certificate of the Secretary of Gannett certifying, as of the date of the Agreement, to resolutions duly adopted by the Board of Directors of Gannett or a duly authorized committee thereof authorizing Gannett's execution and no event delivery of this Agreement and the making of the Borrowings.
(e) Prior to or events simultaneously with the Effective Date, the Borrower shall have occurred which have resulted (i) terminated the "364-Day Facility" under and as defined in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, its Competitive Advance and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinionRevolving Credit Agreement, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the CompanyJuly 28, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair2000, from a financial point of view, to the holders of Company Common Stockas amended, and such opinion shall not have been withdrawn;
paid in full all amounts (h) Deloitte & Touche LLPincluding, independent public accountants for the Companywithout limitation, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form interest and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"fees), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent if any, owing thereunder and Subsidiary to Effect (ii) terminated the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects commitments under its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the ParentRevolving Credit Agreement, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of ParentDecember 1, to the effect that the Exchange Ratio is fair1993, from a financial point of view, to Parent's stockholdersas amended, and such opinion shall not have been withdrawn;
paid in full all amounts (h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31including, 1996without limitation, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statementsinterest and fees), which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normalif any, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16owing thereunder.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/)
Conditions. SECTION 8.1 Conditions 4.1 The commitment of (i) each Arranger to Each Party's Obligation arrange and manage the Interim Facilities and (ii) each Underwriter to Effect underwrite, provide and act as original lender in respect of the Merger. Unless waived by relevant proportion of the partiesInterim Facilities, on the respective obligations of each party to effect the Merger shall be terms and subject to the fulfillment at conditions set out in the Interim Facilities Agreement (including our undertaking in paragraph 2.1 above), is not subject to any conditions, express or prior implied other than the absence of any illegality in respect of the Arrangers or Underwriters arranging or underwriting the Interim Facilities after the date of this letter and provided that where applicable, such illegality alone will not excuse any other Arranger or Underwriter from participating in the relevant Interim Utilisation and will not in any way affect the obligations of any other Arranger or Underwriter.
4.2 For the avoidance of doubt and notwithstanding any provision to the Closing Date of contrary in the following conditions:
(a) this Commitment Documents, we hereby acknowledge and agree that, upon signing the Interim Facilities Agreement, our obligation to provide the Interim Facilities is subject only to the terms and conditions set out in the Interim Facilities Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable nothing in the Merger Commitment Documents (including, without limitation, any breach or termination of this letter or any failure to agree any documents pursuant to paragraph 2 (Financing and Commitment)) above shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) prevent us from funding, participating or making available the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective Interim Facilities in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;Interim Facilities Agreement.
4.3 Each Commitment Party confirms that:
(ea) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents it has completed and is satisfied with the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-results of-interests transaction under APB 16; and:
(i) all required material consents client identification procedures in respect of the Topco (as defined in the Agreed Form Interim Facilities Agreement) and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company (as defined in the Agreed Form Interim Facilities Agreement) that it is required to carry out in connection with making the Interim Facilities available in connection with the Transaction and lessors of material leases shall have been obtained assuming its other liabilities and be assuming and performing its obligations under the Commitment Documents and otherwise in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay respect of the party responsible for obtaining such consents Transaction, in each case in compliance with all applicable laws, regulations and approvals.internal requirements (including all applicable anti-corruption, anti-money laundering, anti-terrorist financing and other "know your customer" laws, regulations, rules and/or requirements); and
SECTION 8.2 Conditions to Obligation of (ii) all due diligence which has been carried out by it, or on its behalf, in connection with the Company to Effect Transaction (and assuming its liabilities and assuming and performing its obligations under the Merger. Unless waived by the CompanyCommitment Documents), the obligation of Group and the Company Target Group and other agreed purposes and that it has no further due diligence requirements;
(b) it has obtained all necessary approvals (including credit committee approvals and all other relevant internal approvals) to effect allow it, and it is not illegal in any applicable jurisdiction for it, to (and there are no further internal impediments to) arrange, manage, underwrite and/or make available the Merger shall be subject Interim Facilities in the amounts specified in this letter and does not require any further internal credit sanctions or other approvals in order to do so; and
(c) it has received, reviewed and is satisfied with the fulfillment at or prior to the Closing Date of the following additional conditionsform of:
(ai) Parent and Subsidiary shall have performed each of the legal opinions set out in all material respects their agreements contained paragraph 3 of Part I (Conditions Precedent to Signing) of Schedule 3 (Conditions Precedent) to the Agreed Form Interim Facilities Agreement;
(ii) the Offer Announcement; and
(iii) the Tax Structure Memorandum; in this Agreement required each case, in such form provided to be performed the Commitment Parties on or prior to the Closing Date and the representations and warranties date of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Codeletter; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------and
(d) it will accept in satisfaction of any condition precedent to the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date availability of the Proxy StatementInterim Facilities requiring delivery of any document described in paragraph (c) above, the effective date a final version of that document which is not different in respects which are materially adverse to interests of the Registration Statement and Underwriter in its capacity as original lender of the Closing Date (or such other date reasonably acceptable Interim Facilities compared to the Companyversion of that document accepted pursuant paragraph (c) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;above.
(e) since For the date hereofavoidance of doubt, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for reliance will be given on the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger Tax Structure Memorandum as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form condition to utilisation of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Interim Facility.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect The consummation of the Merger. Unless waived by the parties, the respective obligations amendment and restatement set forth in Section 3 of each party to effect the Merger this Agreement shall be subject to the fulfillment at or prior to the Closing Date satisfaction of the following conditionsconditions precedent:
(a) The Holder shall have received from the Company (i) this Agreement and the transactions contemplated hereby shall have been approved and adopted duly executed by the requisite vote of Company and each Subsidiary Note Party and (ii) the stockholders Restated Note duly executed on behalf of the Company under applicable law and applicable listing requirements;registered in the name of the Holder.
(b) the shares of Parent Common Stock issuable The Holder shall have received an amendment in the Merger form of Exhibit B hereto to the Side Letter, dated as of August 11, 2009, among Christie/AIX and the Holder, duly executed by each Phase I Subsidiary, and Christie Sub shall have been authorized for listing on Nasdaq upon official notice of issuance;become a party to such side letter (as amended).
(c) the waiting period applicable The Company shall have provided to the consummation Holder an accurate and complete copy of the Merger under the HSR Act Management Services Agreement, which Management Services Agreement shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory acceptable to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; andHolder.
(id) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the The Company and lessors of material leases shall have been obtained and be deposited $3,873,045 into the Satellite Financing Account (as defined in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvalsRestated Note).
SECTION 8.2 Conditions to Obligation (e) The Holder shall have received the Satellite Financing Control Agreement (as defined in the Restated Note), duly executed on behalf of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:Collateral Agent and UBS Financial Services Inc.
(af) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company The Holder shall have received a certificate of favorable written opinion (addressed to the Chairman of Holder and dated the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(bRestatement Date) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to for the Company, in form and substance reasonably satisfactory covering such matters relating to the CompanyCompany and the Restated Note as the Holder shall reasonably request. The Company hereby requests such counsel to deliver such opinion.
(g) The Holder shall have received a certificate evidencing the incorporation or certificate of formation, effective as of the Closing Date case may be, and based on representations good standing of the Company and Parent, to Christie Sub in such entity’s state or other jurisdiction of incorporation or organization issued by the effect that Secretary of State (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and or other applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(aauthority) of the Code; such state of incorporation or organization as of a date within fifteen (ii15) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) days of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------Restatement Date.
(ch) the Company The Holder shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinionsecretary’s certificate, dated as of the Restatement Date, certifying as to (i) the organizational documents of Christie Sub, certified as of a date on which the Proxy Statement and Prospectus is first distributed to the stockholders within five (5) days of the Company, to the effect that the consideration to be received Closing Date by the stockholders applicable governmental authority of the Company in applicable jurisdiction and (ii) the Merger is fairby-laws, from a financial point limited partnership agreement or limited liability company agreement, as applicable, of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; andChristie Sub.
(i) The parent Holder shall have entered into an employment agreement received all fees and other amounts due and payable in connection with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed and the Original Note on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Restatement Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Cinedigm Digital Cinema Corp.)
Conditions. SECTION 8.1 5.01 Conditions to Each Party's Obligation Obligations to Effect the MergerTransactions Contemplated Hereby. Unless waived by the parties, the The respective obligations of each party hereto to effect the Merger transactions contemplated hereby shall be subject to the fulfillment at or prior to the Closing Date of each of the following conditions:
(a) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority, nor shall any action or proceeding brought by any governmental authority or agency be pending, which (i) prevents, restricts or delays or seeks to prevent, restrict or delay the consummation of the transactions contemplated by this Agreement or (ii) seeks a material amount of monetary damages in connection with the consummation of the transactions contemplated by this Agreement.
(b) Sellers and Buyer and any other person (as defined in the HSR Act) required in connection with the transactions contemplated hereby shall have been approved to file a Notification and adopted by Report Form for Certain Mergers and Acquisitions with the requisite vote of Antitrust Division and the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable FTC pursuant to the consummation of the Merger under the HSR Act shall have made such filings and all applicable waiting periods with respect to each such filing (including any extensions thereof) shall have expired or been terminated;.
(c) Buyer and the Company shall have filed with the FCC all requisite applications in connection with the transfer of control of all FCC-licensed satellite earth station facilities, experimental FCC authorizations, and equipment authorizations currently held by the Company pursuant to the FCC Rules, and each such application shall have been approved by the FCC.
(d) Each condition to closing set forth in that certain Agreement Regarding Stock Acquisition (the Registration Statement shall have become effective in accordance with the provisions of the Securities Act"Agreement Regarding Stock Acquisition") among Stephen P. Kavouras, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & Buyer an▇ ▇▇▇ ▇▇▇▇▇▇ L.L.P.▇▇▇▇▇▇ on Schedule 1 as Sellers, certified public accountants for Parentdated of even date herewith, shall have delivered a letterbeen fulfilled at or prior to Closing, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases such condition shall have been obtained and be in effect at waived by the Effective Time; provided, however, that party whose obligations under the failure to obtain Agreement Regarding Stock Acquisition were contingent upon such consents or approvals shall -------- ------- not be due condition.
5.02 Conditions to the default or delay Obligations of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company Sellers to Effect the MergerTransactions Contemplated Hereby. Unless waived by the Company, the obligation The obligations of the Company Sellers to effect the Merger transactions contemplated hereby shall be further subject to the fulfillment at or prior to the Closing Date of each of the following additional conditions, any one or more of which may be waived in whole or in part by a majority of Sellers in writing:
(a) Parent and Subsidiary Buyer shall have performed and complied in all material respects their agreements with all agreements, obligations, conditions and covenants contained in this Agreement required to be performed on and complied with by it at or prior to the 6 - 105 - Closing Date and the all representations and warranties of Parent and Subsidiary Buyer contained in this Agreement shall be true and correct in all material respects on and as of the date made and on of this Agreement and as of the Closing Date (as if made at and as the Closing Date was the date of such datethis Agreement), and the Company Sellers shall have received a certificate of the Chairman of the Board and Chief Executive Officer, certificates to that effect signed by the President or a any Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary Buyer together with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements documents, instruments and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally writings required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received delivered by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment Buyer at or prior to the Effective Time Closing pursuant to this Agreement or otherwise reasonably required by Buyer in connection herewith.
(b) Buyer shall have delivered to Sellers (i) a copy of the additional following conditions:Certificate of Incorporation of Buyer, including all amendments thereto, certified by the Secretary of State of the State of Delaware and (ii) a certificate from the Secretary of the State of Delaware to the effect that Buyer is in good standing in such State.
(ac) the Company No actions or proceedings which have a material likelihood of success shall have performed in all been instituted or, to the knowledge of Buyer, threatened by any governmental body or authority to restrain or prohibit any of the transactions contemplated hereby.
(d) All material respects its agreements contained in consents, waivers, authorizations, licenses and approvals, if any, necessary to permit Sellers to consummate the transactions contemplated by this Agreement required shall have been received.
(e) All documents and instruments to be performed on delivered at Closing or prior to otherwise in connection with the Closing Date and the representations and warranties of the Company contained in transactions contemplated by this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, reasonably satisfactory in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form Sellers and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16their counsel.
Appears in 1 contract
Sources: Stock Purchase Agreement (Data Transmission Network Corp)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective (a) The obligations of each party the Company to effect consummate the Merger transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the The representations and warranties of Parent and Subsidiary contained each of the Holders set forth in this Agreement Section 3 hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at date and as a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Holders in connection with the consummation of such datethe transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, and approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Company or the Holders shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, been obtained in form and substance reasonably satisfactory to the Company, effective .
(iii) The Shareholder Approval shall be obtained by the necessary affirmative vote of the shareholders of the Company as described above in Section 1.
(iv) Each of the Holders shall have delivered to the Company for cancellation their Notes or an affidavit of loss and indemnity.
(b) The obligations of the Holders to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment of the following conditions:
(i) The representations and warranties of the Company set forth in Section 2 hereof shall be true and correct on and as of the Closing Date date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will a certificate certifying such shall be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; delivered.
(ii) ParentAll proceedings, Subsidiary and Company will each corporate or otherwise, to be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of taken by the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) connection with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Company or the Holders shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Holders.
(iii) The Shareholder Approval shall be obtained by the necessary affirmative vote of the shareholders of the Company as described above in Section 1.
(iv) The Company shall have caused the Conversion Shares to be approved for listing on the American Stock Exchange or any national securities exchange on which the Common Stock is then listed.
(v) The Holders shall have received a legal opinion of Graubard Miller, counsel to the Company, stating that addressed to the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇Holders da▇▇▇ ▇. ▇ ▇▇▇f ▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form losing date covering such matters as is customary of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations transactions of Parent this nature and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;the Holders.
(bvi) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as Each of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company Holders shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company for cancellation their Notes or an affidavit of loss and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.indemnity
Appears in 1 contract
Sources: Debt Conversion Agreement (Ladenburg Thalmann Financial Services Inc)
Conditions. SECTION 8.1 7.1 Conditions to Each Party's Obligation to Effect the MergerObligations. Unless waived by the parties, the The respective obligations of -------------------------------------- each party Party to effect consummate the Merger shall be are subject to the fulfillment at satisfaction or prior to waiver by each of the Closing Date Parties of the following conditions:
(a) this Agreement and the transactions contemplated hereby Merger shall have been approved and adopted by the requisite vote of the stockholders of received the Company under applicable law and applicable listing requirementsStockholder Approval;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the S-4 Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such the effectiveness of the S-4 Registration Statement shall have been issued by the SEC and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authoritieseffect;
(ec) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunctionjudgment, order or decree lifted);
(f) no action shall have been takenorder, and no decree, statute, law, ordinance, rule or regulation shall have been regulation, entered, enacted, promulgated, enforced or issued by any state court or federal government other Governmental Entity of competent jurisdiction or governmental agency other legal restraint or prohibition shall be in effect which (i) has the United States which would prevent effect of making the consummation of the Merger or make the other transaction contemplated hereby illegal, (ii) materially restricts, prevents or prohibits consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation or any of the Merger and the transactions contemplated herebyhereby or (iii) would impair the ability of Parent to own the outstanding shares of the Surviving Corporation, and all consents from lenders required to consummate or operate its or any of its Subsidiaries' businesses (including the Mergerbusinesses of the Surviving Corporation or any of its Subsidiaries), shall have been obtained and be in effect at following the Effective Time;
Time (h) Coopers & ▇▇▇▇▇▇▇ L.L.P.collectively, certified public accountants for Parent"Restraints"); and there shall not be pending any suit, shall action or ---------- proceeding by any Governmental Entity or third party which would have delivered a letter, dated any of the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Timeforegoing effects; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay each of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary Parties shall have performed in all material respects used their agreements contained in this Agreement required reasonable best efforts to be performed on or prior to prevent the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as entry of such date, Restraints and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to appeal as promptly as possible any such Restraints that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will may be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Companyentered;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 waiting period(s) under the HSR Act or antitrust or competition laws of any applicable jurisdiction, if applicable, shall have been furnished as required by Section 7.4;expired; and
(e) since the date hereof, there Parent Shares to be issued pursuant to the Merger shall have been no changes that haveduly approved for listing on the NYSE, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation subject to official notice of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16issuance.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the (a) The respective obligations of each party Party to effect the Merger Exchange shall be subject to the fulfillment satisfaction at or prior to the Closing Date of the following conditions:
(ai) The Exchange and the Merger Agreement shall have been approved by holders of a majority of the outstanding Class A Stock at the Stockholders Meeting, and the Merger shall have been consummated;
(ii) The waiting periods (and any extensions thereof) applicable to the Reorganization under the HSR Act shall have been terminated or shall have expired;
(iii) The FCC Approval shall have been obtained;
(iv) All filings required to be made prior to the Closing by any Party or any of its respective subsidiaries with, and all consents, approvals and authorizations required to be obtained prior to the Closing by any Party or any of its respective subsidiaries from, any Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been approved made or obtained, except where the failure to obtain such consents, approvals and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementsauthorizations would not cause a Material Adverse Effect;
(bv) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities ActNo statute, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(fpermanent) no action shall have been taken, and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any state Governmental Entity and no other legal restraint or federal government prohibition shall be in effect which prohibits, restrains or governmental agency in the United States which would prevent enjoins the consummation of the Merger Exchange or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(ivi) all required material consents and approvals At least 91.25% of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors total outstanding principal amount of material leases shall have been obtained and be in effect the Notes are tendered for exchange at the Effective Time; provided, however, that Closing by the failure Consenting Noteholders pursuant to obtain such consents or approvals shall -------- ------- not be due to the default or delay Section 2.1.
(b) The obligations of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company Consenting Noteholders to effect the Merger Exchange shall be subject to the fulfillment satisfaction at or prior to the Closing Date of the following additional conditions:
(ai) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the The representations and warranties of Parent Holdings, Wireless and Subsidiary Investco contained in this Agreement shall be true and correct in all material respects on and as of the date made and (without regard to any materiality or Material Adverse Effect qualifier contained therein), on and as of the Closing Date as if made at and as of such date, except where the failure of such representations and the Company shall have received a certificate of the Chairman of the Board warranties to be true and Chief Executive Officercorrect would not reasonably be expected to have, the President individually or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or haveaggregate, a Parent Material Adverse Effect;
(fii) all governmental waiversEach of Holdings, consents, orders, Wireless and approvals legally required for the consummation of the Merger and the transactions contemplated hereby Investco shall have been obtained and be performed or complied in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together all material respects with all such promulgations, would materially impair obligations required by this Agreement to be performed or complied with by it at or prior to the value to Parent of the MergerClosing;
(giii) the Company shall have received from Each of ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ .▇. ▇▇▇▇▇▇ Capital, L.P. and Sixty Wall Street Fund, L.P. shall have converted all their shares of Class B Stock into shares of Class A Stock prior to the record date for the Stockholders Meeting and shall have entered into the Voting and Lock-Up Agreement;
("▇▇. ▇▇▇▇▇▇")iv) The Consenting Noteholders shall have received (or will receive at the Closing) payment in cash of all interest accrued through the Closing in respect of the Notes held by them and tendered in the Exchange; and
(v) Since September 30, 2006, there shall not have been any change, circumstance or event which, individually or in the aggregate, has had or would reasonably be expected to have a form of which is attached hereto as Exhibit ------- 8.2(i). ------Material Adverse Effect.
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the (c) The obligations of Parent Holdings, Wireless and Subsidiary Investco to effect the Merger Exchange shall be subject to the fulfillment satisfaction at or prior to the Effective Time Closing of the following additional following conditions:
(ai) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the The representations and warranties of the Company Consenting Noteholders contained in this Agreement shall be true and correct in all respects on and as of the date made and (without regard to any materiality qualifier contained therein), on and as of the Closing Date as if made at and as of such date, except where the failure of such representations and Parent shall have received warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Certificate material adverse effect on the ability of the President and Chief Executive Officer or of a Vice President of Consenting Noteholders to consummate the Company, in form and substance reasonably satisfactory to Parent to that effecttransactions contemplated by this Agreement;
(bii) Parent The Consenting Noteholders shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by it at or prior to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial conditionClosing; and
(iiii) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, Supplemental indentures including the Amendments shall have been validly executed and delivered a letter, dated by Wireless and the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that trustee under the Merger will qualify as a pooling-of-interests transaction under APB 16indentures governing the Notes.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date 3.1 The availability of the following conditionsFacility and the Original Credit Parties’ obligations to arrange, underwrite and fund the Facility in full is subject only to:
(a) receipt by us of a copy of this Agreement letter countersigned by you; and
(b) satisfaction of the Certain Funds Conditions and the Initial Conditions Precedent set out in the Agreed Form Facility Agreement. There are no other conditions, implied or otherwise, to the commitments of the Original Credit Parties, their obligations hereunder and their funding of the Facility.
3.2 Each Original Credit Party is pleased to confirm that:
(a) its credit committee and all other internal bodies or committees have given full and final approval for arranging, underwriting and/or funding (as the case may be) the Facility on the “certain funds” basis as described and on the terms set out in the Commitment Documents, and performing all of its duties, roles and obligations as contemplated by the Commitment Documents (including but not limited to all client identification procedures in respect of the Sponsors and their Affiliates, the Holdco, the Parent and the Company required in connection with the Merger), the Facility and the transactions contemplated hereby shall have been approved therein (together, the Transaction) in compliance with applicable laws, regulations and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing internal requirements;
(b) it has received and reviewed the shares of Parent Common Stock issuable draft or final Merger Documents, Original Financial Statements, Base Case Model, Reports, the Structure Memorandum and Group Structure Chart (in each case, as defined in the Merger shall have been authorized for listing Agreed Form Facility Agreement, and together, the Commercial CPs) and the related conditions precedent set out in the Facility Agreement (which will reflect clause 4 (Conditions of Utilisation) of the Agreed Form Facility Agreement and be subject to clause 4.3 (Utilisations during the Certain Funds Period) therein) will be satisfied subject to the delivery of final versions of the Commercial CPs that are not materially different in respects which are materially adverse to the interests of the Credit Parties (taken as a whole) under the Commitment Documents compared to the most recent form of such Commercial CPs delivered to the Original Credit Parties on Nasdaq upon official notice or before the date of issuance;this letter or (in the case of all of the Commercial CPs) are approved by all of the Original Credit Parties (acting reasonably with such approval not to be unreasonably withheld or delayed) and it will promptly confirm this accordingly to the Agent; and
(c) there are no outstanding approvals, due diligence items or other internal impediments to it arranging, underwriting and/or funding (as the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(dcase may be) the Registration Statement shall have become effective Facility on the “certain funds” basis as described and on the terms set out in accordance with the provisions Commitment Documents and performing all of the Securities Actits roles, duties and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted obligations as contemplated by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing Commitment Documents. Each Original Credit Party undertakes to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed issue an interim confirmation letter on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated before the date of the Proxy Statement, Merger Agreement in relation to the effective date status of the Registration Statement and the Closing Date documentary conditions precedent delivered pursuant to Clause 4 (or such other date reasonably acceptable to the CompanyConditions of Utilisation) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Agreed Form Facility Agreement.
Appears in 1 contract
Sources: Commitment Letter (New Frontier Public Holding Ltd.)
Conditions. SECTION 8.1 Conditions The Dealer Managers shall be entitled to Each Party's Obligation to Effect withdraw as Dealer Managers in connection with the Merger. Unless waived by Invitation, at any time, if the partiesconditions set forth in this Section 10 are not met, and the respective obligations of each party to effect the Merger Dealer Managers hereunder shall at all times be subject subject, in their discretion, to the fulfillment at or prior to the Closing Date of the following conditionsconditions that:
(a) this Agreement All representations and warranties and other statements of UMS contained herein are now, and at all times during the transactions contemplated hereby shall have been approved Invitation and adopted by until the requisite vote of the stockholders of the Company under applicable law Settlement Date will be, true and applicable listing requirements;correct.
(b) UMS at all times during the shares of Parent Common Stock issuable in the Merger Invitation shall have performed all of its obligations hereunder theretofore required to have been authorized for listing on Nasdaq upon official notice of issuance;performed.
(c) the waiting period applicable The Exchange Offer Supplement and any amendment or supplement thereto with respect to the consummation of Invitation shall have been filed with the Merger Commission by post-effective amendment or pursuant to Rule 424(b) under the HSR Act shall have expired or been terminated;
(d) within the Registration Statement shall have become effective applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with the provisions of the Securities Act, and Section 4(d) hereof; no stop order suspending such the effectiveness of the Registration Statement or any part thereof and no order preventing or suspending use of the Prospectus or any amendment or supplement thereto shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted initiated or threatened by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents Commission; and all requests for additional information on the consummation part of the Merger Commission shall have been issued and remain in effect (each party agreeing complied with to use its your reasonable efforts to have any such injunction, order or decree lifted);satisfaction.
(fd) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in On the United States which would prevent date hereof (the consummation of the Merger or make the consummation of the Merger illegal;
(g“Commencement Date”) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated herebyAnnouncement Date, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & S▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇C▇▇▇▇▇▇▇ LLP, special counsel your United States counsel, shall have furnished to you such written opinion or opinions, dated the respective date of delivery thereof, with respect to the Company, in form and substance reasonably satisfactory to the Company, effective as validity of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Fiscal Agency Agreement and applicable state law will be treated for United States federal income tax purposes the Reopened Notes, the Registration Statement, the Prospectus and such other related matters as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional sharesyou may reasonably request, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company counsel shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering their opinions, S▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & C▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent LLP may assume all matters of Mexican law covered by the opinions referred to in paragraphs (e) and Subsidiary, dated the date (f) of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;this Section 10.
(e) since On the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger Commencement Date and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Announcement Date, and no governmental authority shall have promulgated any statuteR▇▇▇▇, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from H▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ & Company, Inc. S.C., your Mexican counsel, shall have furnished to you such written opinion or opinions, dated the respective date of delivery thereof, with respect to the validity of this Agreement, the Fiscal Agency Agreement and the Reopened Notes, the Registration Statement, the Prospectus and such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering such opinion, such counsel may assume all matters of United States Federal and New York law covered by the opinions referred to in paragraph (d) of this Section 10.
(f) On the Commencement Date and the Announcement Date, the Deputy Director General of Legal Procedures of Credit of the Ministry of Finance and Public Credit, or other nationally recognized investment banking firm reasonably acceptable the Fiscal Attorney of the Federation or the Deputy Fiscal Attorney of the Federation, shall have furnished to Parent) an you his or her written opinion, dated as the respective date of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Companydelivery thereof, in form and substance reasonably satisfactory to you, addressing the Companymatters set forth in Annex I hereto. In rendering such opinion, stating such counsel may state that his or her opinion is limited to matters of Mexican law and, as to all matters of United States Federal and New York law, may rely upon the Company has not taken any action that would affect the ability opinion referred to account for the Merger as a pooling-of-interests transaction under APB 16; andin paragraph (g) of this Section 10.
(ig) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect On the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Commencement Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such dateAnnouncement Date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the CompanyCleary, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ Gottlieb, S▇▇▇▇ & H▇▇▇▇▇▇▇▇ LLP, special United States counsel for UMS, shall have furnished to you their written opinion, dated the respective date of delivery thereof, in form and substance satisfactory to you, addressing the matters set forth in Annex II hereto. In rendering such opinion, such counsel may state that their opinion is limited to the CompanyFederal laws of the United States and the laws of the State of New York and, effective as to all matters of Mexican law, may rely upon the opinion referred to in paragraph (f) of this Section 10.
(h) UMS shall have furnished to you, on the Commencement Date and the Announcement Date, a certificate in English, dated the respective date of delivery thereof, of the Deputy Undersecretary for Public Credit, in which such official shall state that, to the best of his or her knowledge after reasonable investigation: (i) the representations and warranties of UMS in this Agreement are true and correct in all material respects with the same effect as though such representations and warranties had been made at and as of the Closing respective date of such certificate (other than such representations and warranties which are made as of a specified date), (ii) UMS has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the respective date of such certificate, (iii) no proceeding has been initiated, or to the best of his or her knowledge, threatened to restrain or enjoin the Invitation or the issuance or delivery of the Reopened Notes by UMS pursuant to the Invitation Materials or in any manner to question the laws, proceedings, directives, resolutions, approvals, consents or orders under which the Invitation will be effected or the Reopened Notes will be issued pursuant thereto or to question the validity of the Invitation or the Reopened Notes, and none of said laws, proceedings, directives, resolutions, approvals, consents or orders has been repealed, revoked or rescinded in whole or in relevant part, and (iv) since the respective dates as of which information is given in the Prospectus as amended or supplemented and on or before the Announcement Date, substantially there has not been any material adverse change, or any prospective material adverse change, in or affecting the form financial, economic, fiscal, political or other condition, or foreign exchange controls, of UMS, except as set forth in Exhibit 8.3(b) attached hereto; --------------or contemplated by the Prospectus as amended or supplemented.
(ci) Parent Since the respective dates as of which information is given in the Prospectus as amended or supplemented on or before the Announcement Date, there shall not have been any material adverse change, or any prospective material adverse change, in or affecting the financial, economic, fiscal, political or other condition, or foreign exchange controls, of UMS, otherwise than as set forth in or contemplated by the Prospectus as amended or supplemented, the effect of which, in any such case, is in your reasonable judgment, after consultation with UMS, so material and adverse such as to make it impracticable or inadvisable to proceed with the Invitation or the delivery of the Reopened Notes or purchase of the Old Bonds on the terms and in the manner contemplated by the Prospectus as amended or supplemented.
(j) Subsequent to the execution and delivery of this Agreement and on or before the Settlement Date there shall not have occurred any of the following: (A) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (B) trading of any securities of UMS shall have received "comfort" letters been formally suspended or limited on any international exchange; (C) a general moratorium on commercial banking activities in customary form New York or UMS declared by either United States or New York State authorities or authorities of UMS, respectively; (D) a material failure in the computerized systems used to operate and substance reasonably satisfactory maintain The Depository Trust Company’s Automated Tender Offer Program; or (E) the outbreak or escalation of hostilities involving the United States or UMS or the declaration by the United States or UMS of a national emergency or war, if the effect of any such event specified in clause (E) is in your reasonable judgment, after consultation with UMS, so material and adverse as to Parent from Deloitte make it impracticable or inadvisable to proceed with the Invitation or the delivery of the Reopened Notes on the terms and in the manner contemplated by the Prospectus as amended or supplemented.
(k) On or after the date hereof and on or before the Announcement Date (i) no downgrading shall have occurred in the rating accorded UMS’s debt securities by Standard & Touche LLPPoor’s or M▇▇▇▇’▇ and (ii) neither Standard & Poor’s nor M▇▇▇▇’▇ shall have publicly announced that it has under surveillance or review, certified public accountants with possible negative implications, its rating of any of UMS’s debt securities.
(l) The Deputy Undersecretary for Public Credit or the CompanyDeputy Director General of Legal Procedures of Credit of the Ministry of Finance and Public Credit shall have furnished to you on the Commencement Date and the Announcement Date a certificate in English, dated the date of delivery, to the Proxy Statementeffect that as of its effective date, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income further amendment thereto made by UMS did not contain any untrue statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related a material fact or omit to the Company;
(d) the Affiliate Agreements state any material fact required to be delivered stated therein or necessary to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since make the date hereofstatements therein not misleading; that, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on of the Exchange Offer Supplement, the Prospectus, and any further amendment or supplement thereto made by UMS, the Prospectus as so amended or supplemented, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and that, as of the Proxy respective date of such certificate, neither the Registration Statement and nor the Prospectus is first distributed or any amendment or supplement thereto made by UMS contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing certification shall not apply to the shareholders of Parent, statements in or omissions from the Registration Statement or the Prospectus or any amendment or supplement thereto made in reliance upon and in conformity with information furnished to UMS in writing by you expressly for use in the effect that Registration Statement or the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and Prospectus or such opinion shall not have been withdrawn;amendment or supplement thereto.
(hm) the Company UMS shall have delivered furnished to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average you on each of the published projections of Commencement Date and the securities analysts' which regularly follow the Company Announcement Date such further information, certificates and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance documents as you may reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16request.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect The Scheme will not become Effective and the Merger. Unless waived by the parties, the respective obligations of the Acquirer under clause 2.4 do not become binding unless and until each party to effect of the Merger shall be subject to conditions set out in the fulfillment at or prior to the Closing Date first column of the following conditions:table has been satisfied or waived in accordance with this clause 3.1:
(a) this Agreement (OIO approval) the Acquirer has obtained all consents required under the Overseas Investment Act 2005 and the transactions contemplated hereby shall have been approved Overseas Acquirer None Investment Regulations 2005 to implement the Scheme on terms or conditions acceptable to the Acquirer, acting reasonably, provided that the Acquirer may not withhold its approval to terms or conditions of any such consent if the terms or conditions imposed: (i) are the OIO Standard Terms and adopted by Conditions or are consistent in all material respects with the requisite vote OIO Standard Terms and Conditions; or (ii) arise from or relate to the performance or fulfilment of, or are consistent with, any of the stockholders of Acquirer's undertakings, plans or intentions referred to in the Company under applicable law and applicable listing requirementsAcquirer's OIO application or any subsequent correspondence with the OIO;
(b) (Independent Adviser) the shares of Parent Common Stock issuable in Independent Adviser's Report concludes that the Merger shall have been authorized Consideration is within or above the Independent Adviser's valuation range for listing on Nasdaq upon official notice of issuance;the Shares; Company Company
(c) (Court approval) subject to clause 3.2, the waiting period applicable to Court approves the consummation Scheme in accordance with section 236 of the Merger under the HSR Act shall have expired or been terminated;Companies Act; Company None
(d) (Shareholder approval) Shareholders approve the Registration Statement shall have become effective Scheme at the Scheme Meeting by the requisite majorities in accordance with the provisions sections 236A(2)(a) and 236A(4) of the Securities Companies Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;; Company None
(e) (No restraint) no preliminary judgment, order, restraint or permanent injunction prohibition enforced or other order or decree issued by any federal Government Agency is in effect at 8.00am on the Implementation Date, that prohibits, prevents or state court which prevents materially restricts the consummation implementation of the Merger shall have been issued Scheme; Acquirer and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);Company Acquirer and Company
(f) (No Prescribed Occurrence) no action shall have been taken, Prescribed Occurrence occurs between the date of this agreement and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in 8.00am on the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;Implementation Date; and Company Acquirer
(g) all governmental waivers, consents, orders (Material Adverse Change) no Material Adverse Change occurs between (and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(hincluding) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of this agreement and 8.00am on the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Implementation Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.None Acquirer
Appears in 1 contract
Sources: Scheme Implementation Agreement
Conditions. SECTION 8.1 6.1. Conditions to Obligations of the Purchaser and the Company at Each Party's Obligation to Effect the MergerClosing . Unless waived by the parties, the respective The obligations of the Purchaser and the Company to consummate the transactions contemplated hereby to be consummated at each party to effect the Merger shall be Closing are subject to the fulfillment satisfaction or waiver at or prior to the applicable Closing Date of each of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree Order by any federal or state court Governmental Entity which prevents the consummation of the Merger transactions contemplated hereby shall have been issued and remain in effect (each party agreeing to use its reasonable best efforts to have any such injunction, order injunction or decree Order lifted);
(fb) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent waiting period applicable to the consummation of the Merger transactions contemplated hereby under the HSR Act shall have expired or been terminated;
(c) no statute, rule, regulation or other Law shall have been enacted by any Governmental Entity which would prevent or make illegal the consummation of the Merger illegaltransactions contemplated by this Agreement;
(gd) all governmental waiversany Consents, consents, orders Filings and approvals legally required Approvals that are necessary for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, by this Agreement shall have been made or obtained except where (i) the Company's failure to make or obtain such Consents, Filings and be in Approvals would not have a Material Adverse Effect or a material adverse effect at on the Effective Time;
Company's ability to perform its obligations under this Agreement or (hii) Coopers & ▇▇▇▇▇▇▇ L.L.P.the Purchaser's failure to obtain such Consents, certified public accountants for Parent, shall Filings and Approvals would not have delivered a letter, dated material adverse effect on the Closing Date, addressed Purchaser's ability to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction perform its obligations under APB 16this Agreement; and
(ie) all required material consents and approvals of lenders who have advanced $5,000,000 no suit, claim, investigation, action or more to Parent other proceeding shall be overtly threatened or pending against the Purchaser or the Company and lessors or any Subsidiary before any Governmental Entity which reasonably could be expected to result in the restraint or prohibition of material leases shall have been obtained and be any such party, or the obtaining of damages or other relief from any such party, in effect at connection with this Agreement or the Effective Time; provided, however, that other Transaction Documents or the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay consummation of the party responsible for obtaining such consents and approvalstransactions contemplated hereby or thereby.
SECTION 8.2 6.2. Additional Conditions to Obligation Obligations of the Company to Effect the MergerPurchaser at Each Closing. Unless waived by the Company, the obligation The obligations of the Company Purchaser to effect consummate the Merger transactions contemplated hereby to be consummated at each Closing shall be subject to the fulfillment satisfaction or waiver at or prior to the applicable Closing Date of each of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall have been true and correct in all respects at and as of the date they were made, and shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such dateClosing Date (unless any such representations and warranties are stated to be made as of a date other than the date hereof, and Parent in which case they shall have received been true and correct in all respects as of that date); provided, that this condition shall be deemed satisfied unless the failure of such representations and warranties to be true and correct in all respects (without regard to any qualifiers with respect to materiality or Material Adverse Effect set forth therein) would have, in the aggregate, a Certificate of Material Adverse Effect or would have, in the President and Chief Executive Officer or of aggregate, a Vice President of material adverse effect on the Company, in form and substance reasonably satisfactory 's ability to Parent to that effectperform its obligations under this Agreement;
(b) Parent the Company shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPperformed, special counsel in all material respects, all of its obligations contemplated herein to be performed by the Company, effective as of the Company on or prior to such Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------;
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statementhereof through such Closing Date, the effective date of the Registration Statement there shall not have occurred, and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement itemsbe continuing, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Companya Material Adverse Effect;
(d) the Affiliate Agreements required Series B Certificate of Designation with respect to the series of Preferred Shares to be delivered to Parent pursuant to Section 7.4 issued at such Closing and as dividends on Preferred Shares of such series shall have been furnished as required by Section 7.4duly filed with the Delaware Secretary of State in accordance with the laws of the State of Delaware, and such Series B Certificate of Designation shall be in full force and effect;
(e) since the date hereof, there Conversion Shares issuable upon conversion of the Preferred Shares and the Warrant Shares issuable upon exercise of the Warrants shall have been no changes that have, duly authorized and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effectreserved for issuance;
(f) all governmental waivers, consents, orders and approvals legally required for with respect to the consummation purchase of the Merger Preferred Shares and Warrants by Holding at any Closing that occurs after the transactions contemplated hereby shall have been obtained and be in effect at the Initial Closing Date, and no governmental authority the stockholders of Powertel, Inc. shall have promulgated any statuteapproved the acquisition of Powertel, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the MergerInc. by VoiceStream Wireless Corporation and/or Deutsche Telecom AG;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as trading of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion Common Stock shall not have been withdrawnsuspended by the SEC or the Nasdaq Stock Market or by any other automated quotation system on which the Common Stock is quoted or by any national securities exchange on which the Common Stock is listed;
(h) the Series A Holder Approval and the Company Stockholder Approval shall have been obtained;
(i) the Company shall have obtained the waiver or amendment of provisions of the agreements listed on Exhibit 6.2
(i) to the extent specified in such Exhibit; and
(j) the Company shall have delivered the following to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with Purchaser:
(i) an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary officer's certificate certifying as to fairly present the Company's results from operations compliance with the conditions set forth in clauses (a), (b) and (c) of this Section 6.2;
(ii) a counterpart of the Registration Rights Agreement Registration Rights Agreement5.2(g)executed by the Company;
(iii) the certificates and Warrants specified in Section 1.4;
(iv) an opinion of the Company's independent counsel in substantially the form of, or financial conditionas to substantially the matters set forth in, Exhibit 6.2(j)(iv); and
(iv) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated such other documents as may be required by this Agreement or reasonably requested by the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Purchaser.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions In addition to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject any other conditions to the fulfillment at or prior to the Closing Date of the following conditions:
(a) Loan set out in this Agreement and the transactions contemplated hereby Agreement, PFG will not make any Loan until PFG shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parentreceived, in form and substance reasonably satisfactory to ParentPFG, stating such documents, and completion of such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to negatively affect the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals collectability of lenders who have advanced $5,000,000 or more to Parent the Obligations, PFG’s security interest in Borrower’s Collateral or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; providedvalue thereof, howeverincluding, that the failure to obtain such consents or approvals shall -------- ------- not be due without limitation, with respect to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Companyinitial Loan, the obligation of conditions set forth in clauses (a) through (q), below, and with respect to each subsequent Loan, the Company to effect the Merger shall be subject conditions set forth in clauses (a), (f) (to the fulfillment at or prior extent required in order for the Representations to the Closing Date of the following additional conditions:be true, correct, complete, accurate and current), (l) and (p):
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior duly executed original signatures of Borrower to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received Loan Documents to which Borrower is a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effectparty;
(b) Borrower’s respective constitutional documents and a good standing certificate of Borrower certified by the Company shall have received an opinion Secretary of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel State of the State of Delaware as of a date no earlier than thirty (30) days prior to the Companydate hereof, in form and substance reasonably satisfactory to together with a foreign qualification certificate from the Company, effective as State of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------Minnesota;
(c) duly executed original signatures to borrowing resolutions for Borrower and resolutions authorizing the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersollissuance of the Warrant, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially Warrant Stock (as defined in the form set forth in Exhibit 8.2(cWarrant) attached hereto; --------------and the Conversion Stock;
(d) the Company shall have received "comfort" letters account control agreements as required by Section 8(b) of this Schedule, duly executed by Borrower and each relevant depositary institution in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date favor of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to ParentPFG;
(e) since certified copies, dated as of a recent date, of financing statement searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the date hereof, there shall Liens indicated in any such financing statements either constitute Permitted Liens or have been no changes that haveor, and no event in connection with the Loan, will be terminated or events shall have occurred which have resulted in or have, a Parent Material Adverse Effectreleased;
(f) all governmental waiversthe Representations, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;duly executed by Borrower,
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as a landlord consent executed in favor of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received PFG by the stockholders Borrower’s principal office lessor in respect of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawnBorrower’s premises;
(h) Deloitte & Touche LLPif Borrower’s constitutional documents or stockholders agreements include a redemption right at the option of stockholders, independent public accountants for which right would become exercisable while any Loan is outstanding, the Companywritten waiver of such right by the requisite stockholders until such time as all Obligations are indefeasibly paid and discharged.
(i) a duly executed warrant in the name of PFG to purchase 147,330 shares of Borrower’s Common Stock (collectively, shall have delivered the “Warrant”);
(j) the insurance policies and/or endorsements required pursuant to Section 4.3;
(k) payment of the Fee specified in Section 3 of this Schedule and PFG’s expenses incurred in connection with the Loan;
(l) a letter, duly executed Compliance Certificate dated the Closing Date, addressed date hereof;
(m) the closing of the amendment to the CompanySenior Loan Documents;
(n) as and when required by PFG, a subordination agreement with the Pearland Economic Development Corporation in respect of relative priorities of liens, to which PFG has agreed with Borrower to subordinate, and repayment in respect of Collateral associated with Borrower’s planned manufacturing facility in Pearland, Texas;
(o) closing of the Loan on or before April 14, 2010;
(p) an opinion of counsel in form and substance reasonably satisfactory to the Company, stating Borrower and its counsel that the Company has not taken any action that would affect Note issued concurrently with execution of this Agreement and the ability to account for Conversion Stock (when issued upon conversion of the Merger as a pooling-of-interests transaction Notes) will be exempt from registration under APB 16the Securities Act; and
(iq) The parent Senior Lender and PFG shall have entered into an employment a subordination agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time in respect of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date relative priorities of their liens and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16repayment.
Appears in 1 contract
Sources: Loan and Security Agreement (Cardiovascular Systems Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective 3.1 The obligations of each party the Parties to effect complete the Merger Subscription pursuant to this Agreement shall be subject to conditional upon the fulfillment at or prior to the Closing Date satisfaction or, if applicable, waiver of the following conditions:
3.1.1 there not having occurred at any time before Completion, any event or circumstance which renders any of the Warranties untrue, inaccurate or misleading in any material respect;
3.1.2 there not having occurred at any time before Completion, any event or circumstance which renders any of the Investor Warranties untrue, inaccurate or misleading in any misleading respect;
3.1.3 the Share Split having been completed;
3.1.4 the shares of the Investor continuing to be listed on the Stock Exchange before Completion (asave for any temporary suspension or halt in trading pending the release of an announcement in connection with this Agreement) and no Government Entity having raised, or expressed any intention to raise, any objection to the listing status of such shares or having requested, or expressed any intention to request, any suspension or halt in the trading of such shares (save for any temporary suspension or halt in trading pending the release of an announcement in connection with this Agreement);
3.1.5 the Investor having complied in all respects with the requirements of the Listing Rules and other Applicable Laws in connection with this Agreement and the transactions contemplated hereby shall have hereunder, including any requirement to make announcement, issue circular and obtain shareholders’ approval, if applicable;
3.1.6 all the authorisations, approvals, consents, waivers and permits of, and filings with, Government Entities which are necessary for the entry into this Agreement and/or the performance of the obligations hereunder or otherwise to give effect to the transactions contemplated hereunder as required by Applicable Laws having been approved granted, received, obtained and adopted completed; and
3.1.7 the Sale and Purchase Agreement having been entered into by the requisite vote of parties thereto, all conditions to completion thereof (other than the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable condition relating to the consummation of the Merger conditions to completion under the HSR Act shall have expired this Agreement) having been satisfied or been terminated;
(d) the Registration Statement shall have become effective waived in accordance with its terms, and it not having been amended, varied, terminated, rescinded or cancelled at any time prior to Completion.
3.2 The Condition set out in Clause 3.1.1 may be waived in writing in whole or in part by the provisions Investor. Each of the Securities Act, Conditions set out in Clauses 3.1.2 and no stop order suspending such effectiveness shall have been issued and remain 3.1.4 may be waived in effect and no proceeding for that purpose shall have been instituted writing in whole or in part by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree Company. The Conditions set out in Clauses 3.1.3, 3.1.5, 3.1.6 and 3.1.7 may not be waived by any federal or state court which prevents the consummation of the Merger Party.
3.3 The Investor shall have been issued and remain in effect (each party agreeing to use its reasonable efforts endeavours to have any such injunction, order or decree lifted);
(f) no action shall have been taken, procure the satisfaction and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation continued satisfaction of the Merger or make Conditions set out in Clause 3.1 (other than the consummation of the Merger illegal;
(gCondition set out in Clauses 3.1.1) all governmental waivers, consents, orders as soon as practicable and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or any event prior to the Closing Date Longstop Date. The Company shall use its reasonable endeavours to procure the satisfaction and continued satisfaction of the following additional conditions:
(a) Parent Conditions set out in Clauses 3.1.1, 3.1.3, 3.1.6 and Subsidiary shall have performed 3.1.7 as soon as practicable and in all material respects their agreements contained in this Agreement required to be performed on or any event prior to the Closing Date and Longstop Date.
3.4 Each Party undertakes to give notice to the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as other Party of the date made and on and as occurrence of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, circumstance that is likely to cause a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration Condition not to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or satisfied prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Longstop Date as if made at soon as practicable and as in any event within five (5) Business Days after becoming aware of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16circumstance.
Appears in 1 contract
Sources: Subscription Agreement (E-House (China) Enterprise Holdings LTD)
Conditions. SECTION 8.1 5.1 Completion by the Buyer is conditional on the following Conditions being satisfied (in addition to Each Party's Obligation the Conditions set out in clause 13.1) on terms that are reasonably satisfactory to Effect the Merger. Unless Buyer, or waived by the parties, the respective obligations of Buyer in accordance with clause 5.5:
5.1.1 each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:Warranties remaining true, accurate and not misleading in all material respects as at Completion;
(a) 5.1.2 there having been no material breach by any Seller of its obligations under this Agreement between the date of this Agreement and Completion, provided that any failure by the Sellers to obtain the approval of all Shareholders to amend the Shareholders’ Agreement shall not constitute a material breach for the purposes of this clause 5.1.2;
5.1.3 any and all consents, approvals and waivers in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby shall have been approved and adopted under this Agreement (including the acquisition of the Sale Shares by the requisite vote Buyer, the issuance of the stockholders Convertible Bond, the amendment of the Shareholders’ Agreement in the form of the Amended Shareholders’ Agreement and the amendment and restatement of the memorandum and articles of association of the Company under applicable law in the form of the Amended Articles) having been obtained and applicable listing requirementsremaining in full force and effect as at Completion, and no such consent, approval or clearance having been revoked or modified prior to Completion;
5.1.4 there being no litigation, regulatory action or other legal, regulatory, or other administrative proceedings that would reasonably be expected to prohibit, enjoin, challenge, interfere or delay the consummation of any of the transactions contemplated under this Agreement;
5.1.5 no Group Company Material Adverse Effect having occurred between the date of this Agreement and Completion; and
5.1.6 the Sellers being, and remaining as, shareholders of the Company and holding in aggregate more than fifty per cent. (b50%) of the shares of Parent Common Stock issuable total issued share capital in the Merger Company at all times between the date of this Agreement and Completion.
5.2 Completion by the Sellers is conditional on the following Conditions being satisfied on terms that are reasonably satisfactory to the Sellers, or waived in accordance with clause 5.5:
5.2.1 each of the Buyer Warranties that are qualified with respect to materiality shall have been authorized remaining true, accurate and not misleading in all respects, and each of the Buyer Warranties that are not so qualified shall be true, accurate and not misleading in all material respects, in each case as of the date hereof and as at Completion, except for listing on Nasdaq upon official notice those Buyer Warranties that are as of issuancea specific date, which shall be true, accurate and not misleading as of such date;
(c) 5.2.2 any and all consents, approvals and waivers in connection with the waiting period applicable to execution, delivery and performance of this Agreement and the consummation of the Merger transactions contemplated under this Agreement (including the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions acquisition of the Securities ActSale Shares by the Buyer, the issuance of the Consideration Shares and the purchase of Convertible Bond by the Buyer) having been obtained and remaining in full force and effect as at Completion, and no stop order suspending such effectiveness shall have consent, approval or clearance having been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC revoked or any state regulatory authoritiesmodified prior to Completion;
(e) 5.2.3 there being no preliminary or permanent injunction litigation, regulatory action or other order legal, regulatory or decree by any federal other administrative proceedings that would reasonably be expected to prohibit, enjoin, challenge, interfere or state court which prevents delay the consummation of any of the Merger transactions contemplated under this Agreement; and
5.2.4 no Buyer Material Adverse Effect having occurred between the date of this Agreement and Completion.
5.3 Each Warrantor shall have been issued and remain in effect (each party agreeing to use its reasonable efforts endeavours to have achieve satisfaction of each of the Conditions set out in clause 5.1 and undertakings set out in clause 13.1 as soon as possible after the date of this Agreement and in any event not later than the Completion Date. The Buyer shall use its reasonable endeavours to achieve satisfaction of each of the Conditions set out in clause 5.2 as soon as possible after the date of this Agreement and in any event not later than the Completion Date.
5.4 If, at any time, any of the parties becomes aware of a fact or circumstance that might prevent a Condition being satisfied by the Longstop Date, it shall immediately inform the Buyer (in the case of any Seller becoming aware of such injunctionfact or circumstance) or the Sellers (in the case of the Buyer becoming aware of such fact or circumstance).
5.5 At any time on or before the Completion Date, order the Buyer may waive any Condition set out in clauses 5.1 or decree lifted);
(f) no action shall have been takenundertakings set out in clause 13.1 by Notice to the Sellers on any terms it decides, and no statutethe Sellers may waive any Condition set out in clause 5.2 by Notice to the Buyer on any terms he decides.
5.6 If the Warrantors fail to satisfy, rule or regulation procure the satisfaction of, any Condition set out in clauses 5.1 or 13.1 or the Buyer fails to satisfy, or procure the satisfaction of, any Condition set out in clause 5.2 (each a “CP Defaulting Party”), in each case by 5.00 p.m. on the Longstop Date, and the Buyer (if any Warrantor is a CP Defaulting Party) or the Sellers (if the Buyer is a CP Defaulting Party) does not waive such Condition, the CP Defaulting Party shall have been enacted, by any state or federal government or governmental agency in be entitled to remedy such failure and achieve the United States which would prevent the consummation satisfaction of the Merger or make relevant Condition within twenty (20) Business Days after the consummation Longstop Date (the “Cure Period”). If, following expiry of the Merger illegal;
Cure Period, the relevant Condition remains unsatisfied and the Buyer (gfor any Condition set out in clause 5.1 or 13.1) all governmental waivers, consents, orders and approvals legally required or the Sellers (for any Condition set out in clause 5.2) has not waived such Condition before the consummation expiry of the Merger and the transactions contemplated herebyCure Period, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such dateautomatically terminate with immediate effect, and the Company shall have received indemnify the Buyer (if any Warrantor is the CP Defaulting Party) or the Buyer shall indemnify the Company (if the Buyer is the CP Defaulting Party) (the Buyer or the Company (as applicable) who is being indemnified shall be a certificate “CP Non-defaulting Party”) for a breach of the Chairman obligations of the Board Buyer or the Warrantors respectively under clause 5.3, and Chief Executive Officerkeep the CP Non-defaulting Party indemnified, on demand against all external advisor fees and any other fees directly incurred by the President or a Vice President CP Non-defaulting Party relating to the transactions contemplated by the Transaction Documents (including the negotiation, preparation, execution and performance by it of Parent this Agreement and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPeach other Transaction Document), special counsel up to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company Reimbursement Cap.
5.7 If this Agreement is terminated pursuant to clause 5.6, each party’s further rights and obligations cease immediately on termination, but termination does not affect a party’s accrued rights and obligations as at the Merger Agreement date of termination or its rights and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss obligations arising as a result of termination, provided that the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form remedies set forth in Exhibit 8.2(c) attached hereto; --------------
clause 5.6 shall be the CP Non-defaulting Party’s sole and exclusive remedy for any claim made by CP Non-defaulting Party against the CP Defaulting Party for the termination of this Agreement pursuant to clause 5.6 (d) unless the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date termination of this Agreement is as a result of any fraud or wilful misconduct of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"CP Defaulting Party), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (Prenetics Global LTD)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the (a) The respective obligations of each party Party to effect the Merger Exchange shall be subject to the fulfillment satisfaction at or prior to the Closing Date of the following conditions:
(ai) The Exchange and the Merger Agreement shall have been approved by holders of a majority of the outstanding Class A Stock at the Stockholders Meeting, and the Merger shall have been consummated;
(ii) The waiting periods (and any extensions thereof) applicable to the Reorganization under the HSR Act shall have been terminated or shall have expired;
(iii) The FCC Approval shall have been obtained;
(iv) All filings required to be made prior to the Closing by any Party or any of its respective subsidiaries with, and all consents, approvals and authorizations required to be obtained prior to the Closing by any Party or any of its respective subsidiaries from, any Governmental Entity in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been approved made or obtained, except where the failure to obtain such consents, approvals and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementsauthorizations would not cause a Material Adverse Effect;
(bv) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities ActNo statute, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(fpermanent) no action shall have been taken, and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any state Governmental Entity and no other legal restraint or federal government prohibition shall be in effect which prohibits, restrains or governmental agency in the United States which would prevent enjoins the consummation of the Merger Exchange or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(ivi) all required material consents and approvals At least 91.25% of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors total outstanding principal amount of material leases shall have been obtained and be in effect the Notes are tendered for exchange at the Effective Time; provided, however, that Closing by the failure Consenting Noteholders pursuant to obtain such consents or approvals shall -------- ------- not be due to the default or delay Section 2.1.
(b) The obligations of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company Consenting Noteholders to effect the Merger Exchange shall be subject to the fulfillment satisfaction at or prior to the Closing Date of the following additional conditions:
(ai) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the The representations and warranties of Parent Holdings, Wireless and Subsidiary Investco contained in this Agreement shall be true and correct in all material respects on and as of the date made and (without regard to any materiality or Material Adverse Effect qualifier contained therein), on and as of the Closing Date as if made at and as of such date, except where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the Company aggregate, a Material Adverse Effect; 17
(ii) Each of Holdings, Wireless and Investco shall have received a certificate of performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by it at or prior to the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effectClosing;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders Each of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ J.▇. ▇▇▇▇▇▇ Capital, L.P. and Sixty Wall Street Fund, L.P. shall have converted all their shares of Class B Stock into shares of Class A Stock prior to the record date for the Stockholders Meeting and shall have entered into the Voting and Lock-Up Agreement;
("▇▇. ▇▇▇▇▇▇")iv) The Consenting Noteholders shall have received (or will receive at the Closing) payment in cash of all interest accrued through the Closing in respect of the Notes held by them and tendered in the Exchange; and
(v) Since September 30, 2006, there shall not have been any change, circumstance or event which, individually or in the aggregate, has had or would reasonably be expected to have a form of which is attached hereto as Exhibit ------- 8.2(i). ------Material Adverse Effect.
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the (c) The obligations of Parent Holdings, Wireless and Subsidiary Investco to effect the Merger Exchange shall be subject to the fulfillment satisfaction at or prior to the Effective Time Closing of the following additional following conditions:
(ai) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the The representations and warranties of the Company Consenting Noteholders contained in this Agreement shall be true and correct in all respects on and as of the date made and (without regard to any materiality qualifier contained therein), on and as of the Closing Date as if made at and as of such date, except where the failure of such representations and Parent shall have received warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Certificate material adverse effect on the ability of the President and Chief Executive Officer or of a Vice President of Consenting Noteholders to consummate the Company, in form and substance reasonably satisfactory to Parent to that effecttransactions contemplated by this Agreement;
(bii) Parent The Consenting Noteholders shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel performed or complied in all material respects with all obligations required by this Agreement to be performed or complied with by it at or prior to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial conditionClosing; and
(iiii) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, Supplemental indentures including the Amendments shall have been validly executed and delivered a letter, dated by Wireless and the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that trustee under the Merger will qualify as a pooling-of-interests transaction under APB 16indentures governing the Notes.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the partiesThe waivers in Section 4(b) above will not be effective, the respective obligations of each party to effect the Merger and shall be subject to the fulfillment at or prior to the Closing Date become immediately null, void and unenforceable in their entirety, if any of the following conditionsconditions are not satisfied:
(a1) this Agreement in the aggregate, the Mortgage Transactions may not relate to real property having a Fair Market Value (as certified under the Credit Agreement) of greater than $60 million and any New Indebtedness from the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementsMortgage Transactions may not be in an amount greater than $50 million;
(b2) notwithstanding Section 7.02(a) of the shares Credit Agreement and, in particular, its conditions for sale-leaseback transactions, all of Parent Common Stock issuable the net proceeds (100%) of any Mortgage Transaction shall be deemed to be proceeds of New Indebtedness, not proceeds of a sale, transfer or lease, and must be used by the Borrower and its Subsidiaries to (i) reduce the Total Commitment by an amount equal to such net proceeds in accordance with Section 2.03(c) of the Merger shall have been authorized for listing Credit Agreement, and (ii) prepay Loans in an amount equal to such net proceeds in accordance with Section 2.05(b) of the Credit Agreement not later than the close of business on Nasdaq upon official notice the third Business Day after the receipt of issuancesuch proceeds;
(c3) transfers and leases of real property will be permitted between the waiting period applicable Borrower or any of its Subsidiaries and an Affiliate, but only insofar as to permit the consummation execution of the Merger a Mortgage Transaction involving a special purpose entity that is an Affiliate or as otherwise permitted under the HSR Act shall have expired or been terminatedCredit Agreement;
(d4) prior to execution of any documents related to a Mortgage Transaction, the Registration Statement Borrower shall have become effective in accordance with provide a copy of all draft documents (including any and all schedules or exhibits thereto) to the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger Administrative Agent and the transactions contemplated herebyAgent, and all consents from lenders required to consummate the Mergerin its sole discretion, shall have been obtained and be in effect at the Effective Time;
determined (h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and Administrative promptly as of the date made and on and as of the Closing Date as if made at and as practicable after receipt of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(bdocuments) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary documents and provisions contained therein are consistent with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) requirements of the CodeCredit Agreement as modified or waived by this Waiver and Amendment; and (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) Mortgage Transaction described by such documents satisfies all of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form conditions set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16this Section 4(c); and
(i5) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), the Borrower or the appropriate Subsidiary executes a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Mortgage Transaction that satisfies all of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form conditions set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to this Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 164(c).
Appears in 1 contract
Conditions. SECTION 8.1 5.1 Mutual Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the in Favour of Champignon and AltMed The respective obligations of each party AltMed and Champignon to effect complete the Merger shall be transactions contemplated herein are subject to the fulfillment at or prior to the Closing Date of the following conditionsconditions at or before the Effective Time or such other time as is specified below:
(a) this Agreement and the transactions contemplated hereby AltMed Shareholder Approval shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective obtained in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger BCBCA and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals requirements of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effectany applicable regulatory authority;
(b) the Company CRTCE Acquisition shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel be been completed on the terms disclosed to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------Champignon;
(c) the Company NewCo Shareholder Approval shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent been provided by Champignon in accordance with the BCBCA and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------requirements of any applicable regulatory authority;
(d) each of the Company AltMed Board and the Champignon Board and the NewCo Board shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P.adopted all necessary resolutions and all other necessary corporate action shall have been taken by AltMed, certified public accountants for Parent Champignon and Subsidiary, dated NewCo to permit the date consummation of the Proxy Statement, the effective date of the Registration Statement Amalgamation and the Closing Date (or such all other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included matters contemplated in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parentthis Agreement;
(e) since the date hereof, there CSE shall have been no changes that haveaccepted notice for filing of and approved all transactions of Champignon contemplated herein or necessary to complete the Amalgamation, and no event or events shall have occurred which have resulted in or havesubject only to compliance with the usual requirements of the CSE, a Parent Material Adverse Effectas applicable;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby Newco shall not have been obtained and be engaged in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule business enterprise or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Mergerother activity or had any assets or liabilities;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as distribution of the date on which the Proxy Statement and Prospectus is first distributed Champignon Securities pursuant to the stockholders Amalgamation shall be exempt from prospectus requirements under applicable securities Laws of the CompanyCanada and, except with respect to the effect that the consideration persons deemed to be received by “control persons” of Champignon under such securities Laws, such Champignon Shares shall be subject to any resale restrictions in Canada under such securities Laws and where applicable the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawnvoluntary resale restrictions;
(h) Deloitte & Touche LLPno proceeding commenced by a Government Entity shall be pending or threatened against any party seeking to restrain or prohibit the transactions contemplated by this Agreement, independent public accountants for and there shall be no order of any nature of any Government Entity of competent jurisdiction or any Law that is in effect that restrains, prohibits or prevents the Companyconsummation of the Amalgamation or that has the effect of rendering it unlawful to consummate the transactions contemplated by this Agreement;
(i) all consents, approvals and waivers of any Government Entity necessary under applicable Laws in order to permit consummation of the Amalgamation and the transactions contemplated hereunder shall have delivered a letterbeen obtained, dated and all notices to any Government Entity necessary under applicable Laws in order to permit consummation of the Closing Date, addressed to Amalgamation and the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16transactions contemplated hereunder shall have been delivered; and
(ij) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements terminated. The foregoing conditions are for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average mutual benefit of the published projections Parties and may be waived by mutual consent of Champignon and AltMed in writing at any time. No such waiver shall be of any effect unless it is in writing signed by both Parties. If any of such conditions shall not be complied with or waived as aforesaid on or before the securities analysts' which regularly follow Completion Deadline or, if earlier, the Company and which financial statements shall reflect all normaldate required for the performance thereof, recurring adjustments necessary then, subject to fairly present Section 5.4, any Party may terminate this Agreement by written notice to the Company's results from operations other Party in circumstances where the failure to satisfy any such condition is not the result, directly or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P.indirectly, public accountants for Parent and Subsidiary, shall have delivered of a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16breach of this Agreement by such terminating Party.
Appears in 1 contract
Sources: Amalgamation Agreement
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective 2.1 The obligations of each party to effect the Merger Parties under Clause 4 of this Agreement shall be subject to conditional on the fulfillment at or prior to the Closing Date satisfaction of each of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have Circular having been approved and adopted in writing by the requisite vote of FCA (the stockholders of the Company under applicable law and applicable listing requirementsCircular Condition);
(b) the shares passing by the requisite majorities at the General Meeting of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuanceShareholder Resolutions (the Shareholder Approval Condition);
(c) the waiting period applicable a valuation report pursuant to the consummation section 593 of the Merger under Act in respect of the HSR Act shall have expired or non-cash consideration to be provided by ▇▇▇▇▇ for the allotment and issue to it of the Consideration Shares, substantially in the form set out at Schedule 3, having been terminatedobtained by Aston Martin and provided to Lucid (the Valuation Condition);
(d) the Registration Statement shall have become effective in accordance with following antitrust conditions (together, the provisions of the Securities Act, and no stop order suspending such effectiveness shall have Antitrust Conditions) having been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC satisfied or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; andwaived:
(i) all required material consents and approvals after notification of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due this Agreement to the default or delay of Japan Fair Trade Commission (JFTC):
(A) the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the CompanyJFTC has notified Lucid, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion relevant member of ▇▇▇▇▇▇ ▇▇▇▇ & ’s Group or PIF (or their advisers) that this Agreement or any matters arising therefrom does not constitute a notifiable transaction; or
(B) the JFTC has cleared the transaction by issuing a notice that this Agreement or any matters arising therefrom will not be prohibited, on terms satisfactory to the Parties;
(ii) after any other notification that is required under Antitrust Laws or foreign investment laws has been made to any Regulatory Authority (other than the JFTC):
(A) the Regulatory Authority has notified Lucid, the relevant member of ▇▇▇▇▇▇▇▇ LLP’s Group or PIF (or their advisers) that this Agreement or any matters arising therefrom does not constitute a notifiable transaction; or
(B) the Regulatory Authority has cleared the transaction by issuing a notice that this Agreement or any matters arising therefrom will not be prohibited, special counsel to the Company, in form and substance reasonably on terms satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the CodeParties; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.or
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect The transactions contemplated by Sections 1.02, 1.03, 1.04 and 1.05 shall become effective only upon the Merger. Unless waived by the partiessatisfaction, the respective obligations of each party to effect the Merger on a single date (which shall be subject to the fulfillment at Effective Date) on or prior to the Closing Date March 31, 1995, of the following conditions:conditions (capitalized terms used in this Section III and not otherwise defined herein shall have the meanings assigned to them in the Amended and Restated Credit Agreement):
(a) this Agreement and all the transactions contemplated hereby payments referred to in Section 1.06 shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementsmade;
(b) the shares of Parent Common Stock issuable in the Merger each Continuing Lender shall have been authorized for listing on Nasdaq upon official notice received a duly executed Note, if requested by such Continuing Lender, in respect of issuanceeach Credit Facility under which it has a Commitment, complying with the provisions of Section 2.06 of the Amended and Restated Credit Agreement; provided that the receipt of executed Swingline Notes by the Swingline Lender requesting Swingline Notes shall not be a condition to the effectiveness of this Agreement or to the obligation of any Continuing Lender to make Loans (other than Swingline Loans to be evidenced thereby);
(c) the waiting period applicable Agent shall have received, on behalf of the Lenders, legal opinions from each of Debevoise & Plimpton, counsel ▇▇ ▇▇▇ ▇redit Parties, Richard A. Kalaher, ▇▇▇., ▇▇▇▇▇▇ ▇▇▇eral Counsel of ASI, and such foreign counsel to ASI and the Subsidiary Borrowers and other counsel as shall have been requested by the Agent, each such opinion to be dated the Effective Date and addressed to the consummation of Issuing Banks, the Merger under Administrative Agent and the HSR Act shall have expired or been terminatedLenders, as to such matters as the Agent may reasonably request, and the Borrowers hereby instruct each such counsel to deliver such opinions;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties set forth in Article III of Parent the Amended and Subsidiary contained Restated Credit Agreement and in this Agreement each Credit Document shall be true and correct in all material respects on and as of such date with the date same effect as though made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, representations and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received warranties expressly relate to an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parentearlier date;
(e) since all legal matters incidental to this Agreement, the date hereofAmended and Restated Credit Agreement, there the Borrowings thereunder, the Credit Documents and the Transactions shall have been no changes that havebe satisfactory to the Lenders and to Cravath, and no event or events shall have occurred which have resulted in or haveSwaine & Moore, a Parent Material Adverse Effectcounsel for ▇▇▇ Agent;
(f) the Agent shall have received, on behalf of the Lenders, (i) in the case of any Credit Party of which the certificate or articles of incorporation (or other analogous document) has been changed since June 1, 1993, a copy of the certificate or articles of incorporation (or other analogous document), including all governmental waiversamendments thereto, consentsof such Credit Party, orderscertified (where reasonably available, in the case of any Credit Party organized outside the United States) as of a recent date by the Secretary of State (or other appropriate Governmental Authority) of the state (or country) of its organization, or other evidence reasonably satisfactory to the Agent as to the organization of such Credit Party; (ii) a certificate as to the good standing or subsistence (or other analogous certification), to the extent available, of each of the Credit Parties as of a recent date, from the appropriate Secretary of State (or other appropriate Governmental Authority) or other evidence reasonably satisfactory to the Agent as to the good standing of such Credit Party; (iii) a certificate of the Secretary or Assistant Secretary (or other Responsible Officer, in the case of Credit Parties that do not have a Secretary or an Assistant Secretary) of each Credit Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or other analogous documents to the extent available) of such Credit Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Credit Party (and, if necessary, resolutions duly adopted by the shareholders or other equity owners of such Credit Party) authorizing the execution, delivery and performance of the Amended and Restated Credit Agreement and the Credit Documents to which such Credit Party is or is to be a party and, in the case of the Borrowers, the Borrowings, and approvals legally required for that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the consummation certificate or articles of incorporation (or analogous documents) of such Credit Party have not been amended since the date of the Merger and last amendment thereto shown on the transactions contemplated hereby shall have been obtained and certificate (or other analogous certification or such other evidence reasonably satisfactory to the Agent) furnished pursuant to clause (i) above or, if no such certificate is required to be in effect at the Closing Datefurnished under (i) above, since June 1, 1993, and no governmental authority shall have promulgated (D) as to the incumbency and specimen signature of each officer executing the Amended and Restated Credit Agreement, any statute, rule Credit Document or regulation which, when taken together with all any other document delivered in connection herewith on behalf of such promulgations, would materially impair Credit Party; (iv) a certificate of another officer as to the value to Parent incumbency and specimen signature of the MergerSecretary or Assistant Secretary executing the certificate pursuant to clause (iii) above; and (v) such other documents as the Lenders, the Issuing Banks or Cravath, Swaine & Moore, counsel for ▇▇▇ Agent, may reasonably request;
(g) the Company Agent shall have received from ▇▇▇▇▇▇▇▇▇ & Companyreceived, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as on behalf of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders Lenders, an Officer's Certificate of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letterASI, dated the Closing Effective Date, addressed to confirming compliance with the Company, conditions precedent set forth in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
paragraphs (b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
and (c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of Section 4.01 of the Proxy Statement, the effective date of the Registration Statement Amended and the Closing Date (or Restated Credit Agreement insofar as such other date reasonably acceptable conditions precedent relate to Parent) with respect to certain financial statements ASI and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawnits Subsidiaries;
(h) the Company Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by any of the Borrowers hereunder or under any Credit Document (to the extent invoices and statements therefor have been received);
(i) the Security Documents and the Guarantee Documents shall be in full force and effect on the Effective Date. The Collateral Agent on behalf of the holders of the Obligations shall have a security interest in the Collateral of the type and priority described in each Security Document, perfected to the extent contemplated by Section 3.09 of the Amended and Restated Credit Agreement;
(j) the Agent shall have received, on behalf of the Lenders, a satisfactory Perfection Certificate dated the Effective Date from ASI, demonstrating the perfection, to the extent contemplated by Section 3.09 of the Amended and Restated Credit Agreement, of the Liens granted under the Security Documents;
(k) the Offering shall have occurred (or shall occur contemporaneously with the initial Borrowings under the Amended and Restated Credit Agreement) on the terms and conditions disclosed to the Lenders prior to execution and delivery of this Agreement (or other terms and conditions approved by the Lenders). The Agent shall have received, on behalf of the Lenders, copies of all documentation executed and delivered in connection with the Offering;
(l) the Lenders shall have received a satisfactory pro forma consolidated balance sheet for ASI, reflecting the Transactions, and a satisfactory statement of sources and uses of funds in connection with the Transactions, in each case certified by a Financial Officer of ASI;
(m) after giving effect to Parent all Borrowings made on the Effective Date, the Total Revolving Credit Commitment will exceed the aggregate outstanding principal amount of Revolving Credit Loans and Swingline Loans by an amount that equals or exceeds $150,000,000 (adjusted as necessary to take account of exchange rate fluctuations occurring after the delivery of the Funding Memorandum);
(n) ASI shall have taken all actions, if any, necessary to designate its audited consolidated financial statements liabilities in respect of the Obligations as senior indebtedness for purposes of the year ended December 31subordination provisions of its subordinated indebtedness (including, 1996in the case of ASI, the Subordinated Securities), and the Obligations shall constitute senior indebtedness for such purposes;
(o) the Agent shall have received, on behalf of the Lenders, a report from ASI's independent insurance broker, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statementsany other evidence reasonably requested by the Lenders, which financial statements shall reflect earnings which are not materially less than demonstrating that the average insurance described in Schedule 3.20 of the published projections Amended and Restated Credit Agreement is in effect;
(p) except as contemplated by the Transactions and as otherwise disclosed to the Lenders prior to the execution and delivery of this Agreement and the Amended and Restated Credit Agreement, there shall not have occurred any Prepayment Event or any other material change in the capitalization or corporate structure of Holding or the Borrowers since the date of the securities analysts' most recent balance sheet referred to in Section 3.08 of the Amended and Restated Credit Agreement;
(q) the Transactions, including the extensions of credit (and in particular the incurrence of the Loans and the issuance of the Letters of Credit) under the Amended and Restated Credit Agreement, the continuance of the Liens created by the Security Documents and the consummation of the Offering, shall have been approved or exempted by all requisite Governmental Authorities, and all such approvals or exemptions, including any conditions imposed thereby, shall be in form and substance acceptable to the Lenders. No action shall have been taken by any Governmental Authority which regularly follow restrains or prevents or seeks to restrain or prevent, or imposes or seeks to impose materially adverse conditions upon, any of the Company Transactions;
(r) no action, suit, litigation or similar proceeding at law or in equity or by or before any court or other Governmental Authority shall exist or, in the case of litigation by a Governmental Authority, be threatened, with respect to any of the Transactions which would in the reasonable opinion of the Lenders be likely to result in a Materially Adverse Effect;
(s) all aspects of the structure and which financial statements documentation of the Transactions and all corporate and other proceedings taken or to be taken in connection therewith and all documents incidental thereto, in each case to the extent not otherwise provided for herein, shall reflect be reasonably satisfactory in form and substance to the Agent and to Cravath, Swaine & Moore, counsel for ▇▇▇ Agent, and the Lenders shall have received copies of all normal, recurring adjustments necessary to fairly present such documents as the Company's results from operations or financial conditionLenders may reasonably request; and
(t) the Agent shall have received, on behalf of the Lenders, the duly executed Credit Documents Amendment Agreement referred to in Schedule 1.03 executed by each person which is a party to any Credit Document. Satisfaction of the foregoing conditions shall be conclusively evidenced by (i) Coopers & ▇▇▇▇▇▇▇ L.L.P.receipts executed and delivered by the Agent and ASI, public accountants for Parent in the case of the condition set forth in clause (a) above and Subsidiary, shall have delivered a letter, dated (ii) the Closing making of the payments described in Section 1.06 on the Effective Date, addressed in the case of the conditions set forth in clauses (b) through (t) above; provided that execution and delivery of the receipts referred to Parentin clause (i) above shall not affect the rights of any party hereto to receive amounts due and payable to it and not actually received by such party. Unless and until the transactions contemplated by Sections 1.02, 1.03, 1.04 and 1.05 become effective as provided above, the Credit Documents shall remain in form full force and substance reasonably satisfactory to Parent stating that effect in accordance with their respective terms and the Merger will qualify as a pooling-of-interests transaction under APB 16rights and obligations of the parties thereto shall not be affected hereby.
Appears in 1 contract
Sources: Assignment and Amendment Agreement (American Standard Companies Inc)
Conditions. SECTION 8.1 Section 5.1 Conditions to the Obligations of Each Party's Obligation to Effect the Merger. Unless waived by the parties, the Party The respective obligations of each party to effect the Merger transactions contemplated by Article I shall be subject to the fulfillment at or prior to the Closing Date of each of the following conditions:
(a) this Agreement and the transactions contemplated hereby Reorganization shall have been approved and adopted by the requisite vote Target’s stockholders as required by the Delaware General Corporation Law and the Target’s certificate of incorporation and bylaws;
(b) no litigation, claim or investigation shall have been initiated or threatened by any Governmental Entity or shall have been initiated by any Person nor shall any statute, rule, regulation or executive order promulgated or enacted by any Governmental Entity which in each case could reasonably be expected to delay or prevent the consummation of the stockholders transactions contemplated by this Agreement in the manner contemplated herein;
(c) all licenses, permits, consents, approvals, waivers, authorizations, qualifications and orders of any Governmental Entity and any other Person to any contracts with the Target and/or GPRe necessary in connection with the consummation of the Company transactions contemplated by this Agreement shall have been obtained, including specifically the approval of the Bermuda Monetary Authority for the transfer of the Shares to the Acquiror;
(d) early termination shall have been granted or applicable waiting periods shall have expired under applicable law the HSR Act, if applicable;
(e) the registration statement on Form F-4 shall have become effective under the Securities Act and applicable listing requirementsno stop order suspending the effectiveness of the registration statement on Form F-4 shall be in effect and no proceedings for such purpose shall be pending or threatened by the SEC;
(f) tax counsel to the Target shall have delivered to the Target an opinion that the transactions contemplated by this Agreement qualify as a reorganization of the Target under Section 368(a)(1)(C) of the Code; and
(g) KPMG, LLP, tax advisor to the Parent shall have delivered to the Acquiror and the Parent (or an affiliate thereof) an opinion that the transactions contemplated by this Agreement qualify as a reorganization of the Target under Section 368(a)(1)(C) of the Code.
Section 5.2 Additional Conditions to the Obligations of the Target The obligation of the Target to effect the transactions contemplated by Article I is also subject to each of the following conditions:
(a) the Acquiror and the Parent shall in all material respects have performed each obligation to be performed by each of them hereunder on or prior to the Closing Date;
(b) the shares representations and warranties of the Acquiror and the Parent Common Stock issuable set forth in this Agreement which are qualified by materiality or Material Adverse Effect shall be true and correct as so qualified at and as of the Merger shall have been authorized for listing on Nasdaq upon official notice date of issuancethis Agreement and at and as of the Closing Date as though made at and as of the Closing Date;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Acquiror and the Parent and Subsidiary contained set forth in this Agreement that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects on at and as of the date made of this Agreement and on at and as of the Closing Date as if though made at and as of the Closing Date; provided, however, that, with respect to representations and warranties that are given as of a particular date or period and relate solely to such dateparticular date or period shall be true and correct only as of such date or period;
(d) from the date hereof through the Closing Date, there shall not have occurred any Material Adverse Effect on either the Acquiror or the Parent, nor shall any event, fact or circumstance have occurred during such time that could reasonably be likely to result in a Material Adverse Effect on either the Acquiror or the Parent;
(e) the Acquiror and the Company Parent shall have received a certificate delivered or caused to be delivered to the Target the documents required under Section 1.5 of the Chairman Agreement; and
(f) the Acquiror and the Parent shall have delivered such certificates as are reasonably requested by the Target certifying the satisfaction of the Board and Chief Executive Officer, foregoing conditions.
Section 5.3 Additional Conditions to the President or a Vice President Obligations of Parent and the Acquiror The obligation of the President Parent and Chief Executive Officer the Acquiror to effect the transactions contemplated by Article I are also subject to each of the following conditions:
(a) the Target shall in all material respects have performed each obligation to be performed by it hereunder on or a Vice President of Subsidiary prior to that effectthe Closing Date;
(b) the Company representations and warranties of the Target set forth in this Agreement which are qualified by materiality or Material Adverse Effect shall be true and correct as so qualified at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that, with respect to representations and warranties that are given as of a particular date or period and relate solely to such particular date or period shall be true and correct only as of such date or period;
(c) the representations and warranties of the Target set forth in this Agreement that are not qualified as to materiality or Material Adverse Effect shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date; provided, however, that, with respect to representations and warranties that are given as of a particular date or period and relate solely to such particular date or period shall be true and correct only as of such date or period;
(d) the Target shall have delivered such certificates as are reasonably requested by the Parent certifying the satisfaction of the foregoing conditions;
(e) prior to the Closing Date, the Target shall have obtained the Target Stockholder Approval;
(f) the Parent and the Acquiror shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPall consents, special counsel authorizations or approvals referred to the Companyin Section 3.3 hereof, in each case in form and substance reasonably satisfactory to the Company, effective as of Parent and the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional sharesAcquiror, and no such opinion shall not have been withdrawn consent, authorization or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there approval shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Mergerrevoked;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (Target has delivered or other nationally recognized investment banking firm reasonably acceptable caused to Parent) an opinion, dated as be delivered to the Parent and the Acquiror the documents required under Section 1.4 of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawnAgreement;
(h) Deloitte & Touche LLP, independent public accountants for from the Company, shall have delivered a letter, dated date of the GPRe Financial Statements through the Closing Date, addressed there shall not have occurred any Material Adverse Effect on either the Target or GPRe, nor shall any event, fact or circumstance have occurred during such time that could reasonably be likely to result in a Material Adverse Effect on either the Company, Target or GPRe;
(i) the Parent shall have purchased after the date hereof Parent Common Stock comprising the Stock Consideration in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16accordance with Section 4.19; and
(ij) The parent the Executive Board of the Parent and the board of directors of the Acquiror shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form authorized and/or ratified the Parent’s and the Acquiror’s execution and delivery of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding withdrawn such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations approval or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16ratification.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Global Preferred Holdings Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger The amendments and waiver set forth in Articles I and II above shall be subject to the fulfillment at or prior by the Borrowers, in a manner satisfactory to the Closing Date Agent, of all of the following conditionsconditions precedent set forth in this Section 4.1:
(a) this Agreement The Borrowers and each of the transactions contemplated hereby Banks shall have been approved executed and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable delivered to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; andAgent this Amendment No. 9.
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the The representations and warranties of Parent and Subsidiary contained in Article III of this Amendment No. 9 and in each other agreement, instrument, certificate or other writing delivered to the Agent or any Bank pursuant hereto or to the Loan Agreement shall be true and correct in all material respects on and as of the date made hereof and on and as of the Closing Effective Date (after giving effect to the waivers included herein) as if though made at on and as of such date, and (ii) no Default or Event of Default shall have occurred and be continuing on the Company Effective Date; and execution and delivery of this Amendment shall constitute confirmation by the Borrowers of the truth and accuracy and satisfaction of the conditions of this Section 4.1.
(c) The Agent shall have received copies of the resolutions of the board of directors of the Borrowers, certified as true, correct and complete by an officer thereof, authorizing the execution and delivery of this Amendment.
(d) The Agent shall have received in form and substance satisfactory to the Agent a certificate of the Chairman an authorized officer of each of the Board Borrowers certifying the names and Chief Executive Officertrue signatures of the officer authorized to sign this Amendment No. 9 and each of the other documents contemplated hereby together with evidence of the incumbency of such authorized officer.
(e) If requested, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company Agent shall have received an opinion opinion, in form and substance satisfactory to the Banks and the Agent, of ▇▇▇▇Allen P. Palles, Esq. or Jam▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, ▇sq., counsel t▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll▇rs as to such matters relating to this Amendment as the Agent and the Banks may reasonably request.
(f) The Borrowers shall have (i) paid to each Bank, special and each Bank shall have received, the Amendment Fee, (ii) paid all fees and expenses of counsel to Parent the Agent incurred in connection herewith; and Subsidiary(iii) otherwise complied in all respects with the terms hereof and of any other agreement, dated document, instrument or other writing to be delivered by the Closing Date, Borrower in connection herewith.
(g) All legal matters incident to this Amendment shall be reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent Agent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Agent.
Appears in 1 contract
Sources: Loan Agreement (Linc Capital Inc)
Conditions. SECTION 8.1 6.1. Conditions to Obligations of the Purchaser and the Company at ------------------------------------------------------------- Each Party's Obligation to Effect the MergerClosing. Unless waived by the parties, the respective The obligations of the Purchaser and the Company to consummate ------------ the transactions contemplated hereby to be consummated at each party to effect the Merger shall be Closing are subject to the fulfillment satisfaction or waiver at or prior to the applicable Closing Date of each of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree Order by any federal or state court Governmental Entity which prevents the consummation of the Merger transactions contemplated hereby shall have been issued and remain in effect (each party agreeing to use its reasonable best efforts to have any such injunction, order injunction or decree Order lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company waiting period applicable to the consummation of the transactions contemplated hereby under the HSR Act shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain expired or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------terminated;
(c) the Company no statute, rule, regulation or other Law shall have received an opinion been enacted by any Governmental Entity which would prevent or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated make illegal the Closing Date, reasonably satisfactory to consummation of the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------transactions contemplated by this Agreement;
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P.any Consents, certified public accountants for Parent Filings and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes Approvals that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required are necessary for the consummation of the Merger transactions contemplated by this Agreement shall have been made or obtained except where (i) the Company's failure to make or obtain such Consents, Filings and Approvals would not have a Material Adverse Effect or a material adverse effect on the Company's ability to perform its obligations under this Agreement or (ii) the Purchaser's failure to obtain such Consents, Filings and Approvals would not have a material adverse effect on the Purchaser's ability to perform its obligations under this Agreement; and
(e) no suit, claim, investigation, action or other proceeding shall be overtly threatened or pending against the Purchaser or the Company or any Subsidiary before any Governmental Entity which reasonably could be expected to result in the restraint or prohibition of any such party, or the obtaining of damages or other relief from any such party, in connection with this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16thereby.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the Mutual Conditions
7.1 The respective obligations of each party the Parties to effect complete the Merger shall be transactions contemplated hereby are subject to the fulfillment at or prior to the Closing Date of the following conditionsconditions on or before the Effective Date, but not later than the Termination Date, or such earlier time as is specified below:
(a) this Agreement and the transactions contemplated hereby shall Interim Order will have been approved granted in form and adopted by the requisite vote of the stockholders of the Company under applicable law substance satisfactory to PMI and applicable listing requirementsAsanko, acting reasonably, and will not have been set aside or modified in a manner unacceptable to such Parties, acting reasonably, on appeal or otherwise;
(b) the shares of Parent Common Stock issuable in the Merger shall Arrangement Resolution will have been authorized for listing on Nasdaq upon official notice of issuancepassed at the PMI Meeting in accordance with the Interim Order;
(c) the waiting period applicable to Transaction Resolutions will have been passed at the consummation of the Merger under the HSR Act shall have expired or been terminatedAsanko Meeting;
(d) the Registration Statement shall Final Order will have become effective been granted in accordance with the provisions of the Securities Actform and substance satisfactory to PMI and Asanko, acting reasonably, and no stop order suspending such effectiveness shall will not have been issued and remain set aside or modified in effect and no proceeding for that purpose shall have been instituted by the SEC a manner unacceptable to such Parties, acting reasonably, on appeal or any state regulatory authoritiesotherwise;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of Effective Date will have occurred before the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)Termination Date;
(f) there will be no action shall have been takentaken under any Laws, and no statute, rule or regulation shall have been enacted, by any state Governmental Entity or federal government private person who is not in contravention of this Agreement, that:
(i) makes it illegal or, directly or governmental agency indirectly, restrains, enjoins or prohibits the Transaction or any other transactions or agreements contemplated herein, or
(ii) results in a judgment or assessment of damages, directly or indirectly, relating to the United States Transaction Documents which would prevent either have a Material Adverse Effect on Asanko or PMI taking into account the consummation of the Merger Transaction, or make it illegal to, or restrains, enjoins, or prohibits, the consummation of the Merger illegalTransaction;
(g) all governmental required consents, waivers, consentspermits, orders and approvals legally of any Governmental Entity or other Persons and the Stock Exchanges (except FSE) and the expiry of any waiting periods, in connection with, or required for to permit, the consummation of the Merger and the transactions contemplated herebyTransaction, and all consents from lenders required to consummate the Merger, shall will have been obtained or received on terms that will not have a Material Adverse Effect on Asanko or PMI taking into effect the Transaction, and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger evidence thereof will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawneach Person;
(h) the Company shall have delivered distribution of the Asanko Shares in Canada pursuant to Parent its audited consolidated financial statements the Arrangement, and the distribution of the Asanko Shares upon exercise of the Replacement Options and Replacement Warrants (if exercised on the Effective Date) are exempt from, or otherwise not subject to, prospectus requirements of applicable Securities Laws and are subject to the resale restrictions under Section 2.6 of NI 45-102;
(i) the distribution of the Asanko Shares in the United States in exchange for the year ended December 31PMI Shares and the Replacement Options in the United States in exchange for the PMI Options, 1996in each case pursuant to the Arrangement, together with an unqualified opinion is exempt from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than registration requirements under the average U.S. Securities Act pursuant to section 3(a)(10) under the U.S. Securities Act;
(j) the distribution of the published projections of Asanko Shares in Australia in exchange for the PMI Shares and the Replacement Options in Australia in exchange for the PMI Options, in each case pursuant to the Arrangement, is exempt from registration requirements notwithstanding such securities analysts' which regularly follow will not be listed on the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial conditionASX; and
(ik) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants this Agreement will not have been terminated pursuant to Article 9. The foregoing conditions are for Parent the mutual benefit of Asanko and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to ParentPMI and may only be waived, in form whole or in part by mutual consent of both of them. If any of the said conditions precedent will not be complied with or waived as aforesaid on or before the date required for the performance thereof, either PMI or Asanko may rescind and substance reasonably satisfactory terminate this Agreement by written notice to Parent stating that the Merger other (provided such non-compliance did not arise from the acts or omissions of the Person purporting to rescind and terminate this Agreement) and will qualify have no other right or remedy, except as a pooling-of-interests transaction under APB 16set forth in Article 9.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the The respective obligations of each party the Parties to complete the transactions contemplated by this Agreement and otherwise to give effect to the Merger Plan of Arrangement shall be subject to the fulfillment at satisfaction, or prior to the Closing Date mutual waiver in writing, of the following conditions:
(a) this Agreement and the transactions contemplated hereby Interim Order shall have been approved granted in form and adopted by the requisite vote substance satisfactory to LVL and each of the stockholders LVL Subsidiaries, acting reasonably, and such order shall not have been set aside or modified in a manner unacceptable to any of the Company under applicable law and applicable listing requirementsParties, acting reasonably, on appeal or otherwise;
(b) the shares of Parent Common Stock issuable in the Merger Arrangement Resolution shall have been authorized for listing on Nasdaq upon official notice approved by the required number of issuancevotes cast by LVL Shareholders at the Meeting in accordance with the Interim Order and, subject to the Interim Order, the constating documents of LVL, applicable Laws and the requirements of any applicable regulatory authorities;
(c) the waiting period applicable Arrangement and this Agreement, with or without amendment, shall have been approved by the shareholders of each of the LVL Subsidiaries to the consummation extent required by, and in accordance with applicable Laws and the constating documents of each of the Merger under the HSR Act shall have expired or been terminatedLevel Subsidiaries;
(d) the Registration Statement Final Order shall have become effective been obtained in accordance with form and substance satisfactory to all Parties, each acting reasonably, not later than July 30, 2023 or such later date as the provisions Parties may agree;
(e) the Arrangement Filings shall be in a form and substance satisfactory to LVL and the LVL Subsidiaries (each acting reasonably);
(f) all material consents, orders, rulings, approvals and assurances, including regulatory and judicial approvals and orders, required for the completion of the Securities Acttransactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the Authorities having jurisdiction in the circumstances, each in a form acceptable to LVL and the LVL Subsidiaries (each acting reasonably);
(g) no action shall have been instituted and be continuing on the Effective Date for an injunction to restrain, a declaratory judgment in respect of, or damages on account of, or relating to, the Plan of Arrangement and there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and no stop cease trading or similar order suspending such effectiveness with respect to any securities of any of the Parties shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Timeoutstanding;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P.none of the consents, certified public accountants orders, rulings, approvals or assurances required for Parentthe implementation of the Plan of Arrangement shall contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by any of the Parties, acting reasonably;
(i) no Laws, regulation or policy shall have been proposed, enacted, promulgated or applied which interferes or is inconsistent with the completion of the Plan of Arrangement, including any material change to the income tax Laws of Canada, which would have a material adverse effect upon LVL Shareholders if the Plan of Arrangement is completed;
(j) no material fact or circumstance, including the fair market value of the shares of the LVL Subsidiaries, shall have delivered changed in a letter, dated manner which would have a material adverse effect upon LVL or the Closing Date, addressed LVL Shareholders if the Plan of Arrangement is completed;
(k) the issuance of the securities under the Plan of Arrangement shall be exempt from registration under the U.S. Securities Act pursuant to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction Section 3(a)(10) Exemption;
(l) this Agreement shall not have been terminated under APB 16Article 6; and
(im) all required material consents and approvals no more than 5% of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the CompanyLVL Shareholders, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Companyaggregate, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16exercised their Dissent Rights.
Appears in 1 contract
Sources: Arrangement Agreement
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the 2.1 The respective obligations of each party Difco to sell and Buyer to purchase the Transferred Interests and thereby to effect the Merger Completion shall be subject to the fulfillment at or prior to the Closing Date satisfaction of the following conditions:conditions precedent:-
(a) this Agreement the written consents and the transactions contemplated hereby shall have been approved and adopted by the requisite vote approvals of the stockholders Secretary to the implementation of the Company under applicable law all matters provided for in this agreement and applicable listing requirementsin any other documents referred to herein, in a form and substance reasonably satisfactory to Difco and Buyer;
(b) the shares any necessary consents and approvals of Parent Common Stock issuable regulatory or governmental authorities in the Merger shall have United Kingdom and the EU having been authorized for listing on Nasdaq upon official notice of issuancegiven in a form and substance reasonably satisfactory to Difco and Buyer to the transactions contemplated by this agreement;
(c) the waiting period applicable to the consummation execution of the Merger under the HSR Act shall have expired or been terminatedAssignment Documents by all parties thereto other than Difco and Buyer;
(d) the Registration Statement shall have become effective in accordance with the provisions receipt of the Securities Actwritten approval or consent of every party to each Licence Interest Document whose approval or consent is required to the assignment or transfer of any Licence Interest Document pursuant to this agreement, having been given in form and no stop order suspending such effectiveness shall have been issued substance reasonably satisfactory to Difco and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authoritiesBuyer;
(e) there having been no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation material breach of the Merger representations and warranties of the Parties contained in this agreement and each Party having performed in all material respects all of its covenants and agreements contained in this agreement (provided that neither Party shall have been issued and remain be entitled to rely on its own breach or non-performance in effect (each party agreeing order to use its reasonable efforts to have any such injunction, order delay or decree liftedavoid effecting Completion);
(f) no action shall have been taken, co-venturer in relation to the Transferred Interests having successfully exercised any binding right contained in a JOA to pre-empt the sale and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16purchase hereby contemplated; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Companyeffective discharge of all mortgages, charges (fixed or floating), pledges, liens, security interests or other encumbrances to the extent that the same affect or relate to the Transferred Interests including, without limitation, the Credit Agreement, the 1998 Debenture, the Debenture and the Guaranty each as defined in the Government Agreement made between The Secretary of State for Trade and Industry, Difco and Toronto Dominion (Texas), Inc. (on 28 June 2000.
2.2 If the conditions specified in clause 2.1 have not all been satisfied or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed Buyer before 5.30 p.m. on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (31 March 2001 or such other time or date reasonably acceptable to Parent) with respect to certain financial statements as Difco and other financial information included Buyer agree in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 writing either Party shall have been furnished as required by Section 7.4;
(e) since the date hereof, there right to terminate this agreement and no Party shall have been no changes any rights or liabilities hereunder except in respect of any breach of this agreement committed before such date.
2.3 Difco and Buyer shall each use their respective reasonable endeavours to procure that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation each of the Merger and above conditions is satisfied on or before the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule time or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent specified for its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16satisfaction.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect 8.1. The Effective Date of this Settlement Agreement is conditioned upon the Merger. Unless waived by the parties, the respective obligations occurrence of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date all of the following conditionsevents:
(a) this Agreement The Court enters the Preliminary Approval and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementsNotice Order;
(b) Metacafe does not exercise its option under Paragraph 6.5 herein to void, nullify, terminate, and/or rescind the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuanceSettlement Agreement;
(c) The Court enters the waiting period applicable Judgment, providing, among other things, that the Class is certified for settlement purposes, that there has been adequate and sufficient notice of the Settlement to the consummation Class, and that the terms and conditions of the Merger under Settlement are fair, reasonable, and adequate as a settlement of the HSR Act shall have expired or been terminated;claims of the Class in the Matters; Persons; and
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authoritiesThe Judgment becomes Final;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents The Matters is dismissed with prejudice as to Metacafe and the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);Protected
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, Plaintiffs and all consents Class Members release Metacafe and all Protected Persons from lenders required to consummate the Merger, shall have been obtained and be in effect at Released Claims.
8.2. In the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating event that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 any one or more to Parent of these conditions is not met, this Settlement Agreement will be of no force or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such dateeffect, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law Parties will be treated for United States federal income tax purposes deemed to be in the same position as a reorganization within they occupied prior to entering into this Settlement Agreement, without waiver of any rights, claims or defenses, unless the meaning of Section 368(a) of Parties mutually agree in writing to proceed with this Agreement.
8.3. If the Code; (ii) Parent, Subsidiary Court does not enter the Preliminary Approval and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respectNotice Order, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy StatementA.1 hereto including all injunction provisions provided therein, the effective date of the Registration Statement Final Approval Order and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing DateJudgment, substantially in the form set forth of Exhibit A.4 hereto, including all injunction provisions provided therein, or if the Court enters Final Approval Order and Judgment and appellate review is sought in Exhibit 8.3(ba matter and, on such review, the Final Approval Order and Judgment is finally vacated, modified, or reversed, then this Agreement and the Settlement incorporated therein shall be cancelled and terminated as to such matter, unless all parties who are adversely affected thereby, in their sole discretion within thirty (30) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent days from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of receipt of such ruling to such parties, provide written notice to all other parties hereto of their intent to proceed with the Proxy StatementSettlement under the terms of the Preliminary Approval Order or the Final Approval Order and Judgment as modified by the Court or on appeal. Such notice may be provided on behalf of Plaintiffs and the Class Members by Settlement Counsel. No Settling Party shall have any obligation whatsoever to proceed under any terms other than substantially in the form provided and agreed to herein; provided, however, that no order of the Court concerning any Fee and Expense Application, or any modification or reversal on appeal of such order, shall constitute grounds for cancellation or termination of this Agreement by any Settling Party. Without limiting the foregoing, Metacafe shall have, in its sole and absolute discretion, the effective date of option to withdraw from the Registration Statement and Settlement if the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement itemsJudgment, including total assetsupon becoming Final, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required does not provide for the consummation dismissal with prejudice of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Released Claims against it.
Appears in 1 contract
Sources: Settlement Agreement
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect The Scheme will not become Effective and the Merger. Unless waived by the parties, the respective obligations of the Bidder under clause 2.3 do not become binding unless and until each party to effect of the Merger shall be subject to conditions set out in the fulfillment at or prior to the Closing Date “Condition” column of the following conditions:
table has been satisfied or waived in accordance with this clause 3: CONDITION RESPONSIBILITY WAIVER (a) this Agreement and (NZCC Clearance) clearance has been given, or an authorisation granted, to the transactions contemplated hereby shall have been approved and adopted by Bidder under the requisite vote Commerce Act for implementation of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing Scheme on Nasdaq upon official notice of issuance;
(c) the waiting period applicable terms or conditions acceptable to the consummation Bidder, acting reasonably, provided that the Bidder may not withhold its approval to terms or conditions of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order clearance or decree lifted);
(f) no action shall have been taken, and no statute, rule authorisation if the terms or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed conditions imposed are consistent in all material respects their agreements contained in this Agreement required to be performed on or prior with undertakings given to the Closing Date and NZCC, specified in, or specified in writing by the representations and warranties of Parent and Subsidiary contained Bidder in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officerconnection with, the President Bidder’s application for clearance or a Vice President of Parent and of authorisation under the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
Commerce Act; Bidder None (b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (iIndependent Adviser) the Merger of Subsidiary with and into Independent Adviser provides an Independent Adviser’s Report to Shareholders which concludes that the Company Consideration is within or above the Independent Adviser’s valuation range for the Shares and, pursuant to clause 1.6, if the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) ParentIndependent Adviser issues an updated, Subsidiary and Company will each be a party replacement or Target Target CONDITION RESPONSIBILITY WAIVER supplementary report prior to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy StatementScheme Meeting that the Consideration continues to be within or above the Independent Adviser’s revised valuation range for the Shares; (c) (Shareholder approval) Shareholders approve the Scheme at the Scheme Meeting by the requisite majorities in accordance with sections 236A(2)(a) and 236A(4) of the Companies Act; Target None (d) (Court approval) subject to clause 3.2, the effective date Court approves the Scheme in accordance with section 236 of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
Companies Act; Target None (e) since (No restraint) no judgment, order, restraint or prohibition enforced or issued by any Government Agency is in effect at 8.00am on the date hereofImplementation Date, there shall have been no changes that haveprohibits, prevents or materially restricts the implementation of the Scheme; Bidder and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
the Target Bidder and the Target (f) all governmental waivers, consents, orders, (No Target Prescribed Occurrence) no Target Prescribed Occurrence occurs during the period commencing on the date of this Agreement and approvals legally required for ending at 8.00am on the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Implementation Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
; Target Bidder (g) (No Bidder Prescribed Occurrence) no Bidder Prescribed Occurrence occurs during the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of period commencing on the date of this Agreement and ending at 8.00am on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
Implementation Date; Bidder Target (h) Deloitte & Touche LLP, independent public accountants for (No Target Material Adverse Change) no Target Material Adverse Change occurs during the Company, shall have delivered a letter, dated period commencing on the Closing date of this Agreement and ending at 8.00am on the Implementation Date, addressed to the Company, in form ; and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
None Bidder (i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect No Bidder Material Adverse Change) no Bidder Material Adverse Change occurs during the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed period commencing on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of this Agreement and ending at 8.00am on the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Implementation Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.. None Target
Appears in 1 contract
Sources: Scheme Implementation Agreement
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect Clauses 3, 4 and 6 do not become binding on the Merger. Unless waived by parties and have no force or effect, and Completion cannot take place, unless each of the parties, conditions listed in the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date first column of the following conditionstable has been either satisfied or waived in accordance with clause 2.4:
(a) this Agreement and satisfactory completion of the transactions contemplated hereby shall have been approved and adopted Buyer's due diligence as determined by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;Buyer in its sole discretion; Buyer
(b) all approvals of any Regulatory Authority which the shares of Parent Common Stock issuable in Sellers and the Merger shall Buyer agree are necessary or desirable to implement the transactions contemplated by this agreement have been authorized for listing obtained either unconditionally or on Nasdaq upon official notice of issuance;conditions satisfactory to the Buyer acting reasonably and have not been withdrawn or revoked; Buyer
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Actno temporary restraining order, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree issued by any federal court of competent jurisdiction, no preliminary or state court which prevents the consummation final decision, determination, or order issued by any Regulatory Authority and no other legal restraint preventing any of the Merger shall have transactions contemplated by this agreement is in effect; Buyer
(d) no Material Adverse Change has occurred; Buyer
(e) a resolution of the shareholders of any Seller that is not a natural person has been issued passed at a duly convened general meeting of that Seller to approve the transactions contemplated by this agreement and remain in effect (entry into and performance of each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);of the Transaction Documents by the relevant Seller; Buyer
(f) no action shall have been taken, the Buyer has received a certified copy of each consent required under each Lease and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in each Key Contract to the United States which would prevent the consummation acquisition of the Merger or make Shares by the consummation Buyer and the change of control of the Merger illegal;Company resulting from that acquisition of the Shares each of which is unconditional or subject only to conditions reasonably acceptable to the Buyer; and Buyer
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall the relevant counterparties have been obtained and be in effect at executed binding agreements to reflect the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that following: (i) the Merger of Subsidiary with and into royalty payment percentage payable by the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇ ▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement will be reduced from 12.5% to 6% and the Closing Date (or such other date reasonably acceptable Company will issue to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or their designee 400,000 Shares, and ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(aii) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date debt (inclusive of principal and the representations accrued and warranties unpaid interest) of AUD $1,400,000 (US $1,287,076) owed by the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & will be reduced to AUD $700,000 (US $643,538) of which amount AUD $645,613 (US $593,538) will be payable by the Company to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel to on the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Completion Date (or such other date reasonably acceptable debt having been paid down with the payment of AUD $54,387 (US $50,000) earlier paid by the Company to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.. Buyer
Appears in 1 contract
Conditions. SECTION 8.1 5.1 Mutual Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations in Favour of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:Bravura and RedLion
(a) this Agreement and the transactions contemplated hereby RedLion Shareholder Approval shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective obtained in accordance with the provisions of the Securities Act, BCBCA and no stop order suspending such effectiveness the requirements of any applicable regulatory authority;
(b) the Bravura Shareholder Approval shall have been issued obtained in accordance with the requirements of the TSXV;
(c) prior to Effective Date, Bravura shall have completed a consolidation of the Bravura Common Shares on the basis of five (5) pre-consolidation shares for one (1) post- consolidated share;
(d) each of the RedLion Board and remain in effect the Bravura Board shall have adopted all necessary resolutions and no proceeding for that purpose all other necessary corporate action shall have been instituted taken by RedLion and Bravura to permit the SEC or any state regulatory authoritiesconsummation of the Amalgamation and all other matters contemplated in this Agreement;
(e) no preliminary the TSXV shall have accepted notice for filing of and approved all transactions of Bravura contemplated herein or permanent injunction or other order or decree by any federal or state court which prevents necessary to complete the consummation Amalgamation, subject only to compliance with the usual requirements of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunctionTSXV, order or decree lifted)as applicable;
(f) no action the TSXV shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in conditionally approved the United States which would prevent listing on the consummation TSXV of the Merger or make Bravura Common Shares to be issued pursuant to the consummation Amalgamation and the RedLion Options, on terms and conditions acceptable to each of the Merger illegalParties, acting reasonably;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, Newco shall not have been obtained and be engaged in effect at the Effective Timeany business enterprise or other activity or had any assets or liabilities;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, the Bravura Common Shares to be issued to persons in the United States pursuant to the Amalgamation and the RedLion Options shall have delivered a letter, dated be exempt from registration requirements under the Closing Date, addressed 1933 Act pursuant to Parent, in form and substance reasonably satisfactory to Parent, stating that Rule 506 of Regulation D under the Merger will qualify as a pooling-of-interests transaction under APB 161933 Act; and
(i) all the distribution of the Bravura Common Shares pursuant to the Amalgamation and the RedLion Options shall be exempt from prospectus and registration requirements under applicable securities Laws of Canada and, except with respect to persons deemed to be “control persons” of Bravura under such securities Laws, such Bravura Common Shares shall not be subject to any resale restrictions in Canada under such securities Laws, other than TSXV escrow and seed share matrix resale restrictions. The foregoing conditions are for the mutual benefit of the Parties and may be waived by mutual consent of Bravura and RedLion in writing at any time. No such waiver shall be of any effect unless it is in writing signed by both Parties. If any of such conditions shall not be complied with or waived as aforesaid on or before the Completion Deadline or, if earlier, the date required material consents and approvals of lenders who have advanced $5,000,000 or more for the performance thereof, then, subject to Parent or Section 5.4, any Party may terminate this Agreement by written notice to the Company and lessors of material leases shall have been obtained and be other Party in effect at the Effective Time; provided, however, that circumstances where the failure to obtain satisfy any such consents condition is not the result, directly or approvals shall -------- ------- not be due to the default or delay indirectly, of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation a breach of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of by such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16terminating Party.
Appears in 1 contract
Sources: Amalgamation Agreement
Conditions. SECTION 8.1 Conditions In addition to Each Party's Obligation any other conditions to Effect the Merger. Unless waived by Loan set out in this Agreement, PFG will not make the partiesLoan until PFG shall have received, the respective obligations in form and substance satisfactory to PFG, such documents, and completion of each party to effect the Merger such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be subject no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to negatively affect the fulfillment at or prior to the Closing Date collectability of the following conditionsObligations, PFG’s security interest in Borrower’s Collateral or the value thereof, including, without limitation:
(a) this Agreement and duly executed original signatures of Borrower to the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementsLoan Documents to which Borrower is a party;
(b) Borrower’s respective constitutional documents and a good standing certificate of Borrower certified by the shares Secretary of Parent Common Stock issuable in State of the Merger shall have been authorized for listing on Nasdaq upon official notice State of issuanceMaryland as of a date no earlier than thirty (30) days prior to the date hereof, together with foreign qualification certificates from the State of Wisconsin;
(c) the waiting period applicable duly executed original signatures to the consummation of the Merger under the HSR Act shall have expired or been terminatedborrowing resolutions for Borrower;
(d) account control agreements as required by Section 8(b) of this Schedule, duly executed by Borrower, US Bank and the Registration Statement shall have become effective Senior Lender in accordance respect of each account of Borrower with the provisions such depositary institutions in favor of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authoritiesPFG;
(e) no preliminary certified copies, dated as of a recent date, of financing statement searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain or, in effect (each party agreeing to use its reasonable efforts to have any such injunctionconnection with the Loan, order will be terminated or decree lifted)released;
(f) no action shall have been takenthe Representations, and no statute, rule or regulation shall have been enacted, duly executed by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;Borrower,
(g) all governmental waivers, consents, orders and approvals legally required for a landlord consent executed in favor of PFG by the consummation Borrower’s principal office lessor in respect of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective TimeBorrower’s principal premises;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, a duly executed warrant purchase agreement and warrant in favor of PFG to purchase 76,923 shares of Borrower’s common stock in agreed form (the “PFG Warrant”);
(i) the insurance policies and/or endorsements required pursuant to Section 4.3;
(j) a duly executed Compliance Certificate dated the date hereof;
(k) the closing of the Revolving Loan contemporaneously with this Agreement;
(l) execution and delivery of a subordination agreement between PFG and the Senior Lender in respect of obligations under this Agreement and the Term Loan;
(m) PFG shall have delivered a letterreceived true, dated correct and current copies of the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Senior Loan Documents; and
(in) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay closing of the party responsible for obtaining such consents Loan and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed Term Loan on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such datebefore March 5, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of 2010. Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions8—”Permitted Indebtedness”—Other Existing Permitted Indebtedness:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Sonic Foundry Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect The effectiveness of this Loan Modification Agreement is conditioned upon the Merger. Unless waived by the parties, the respective obligations execution and delivery of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) this Modification Agreement and the transactions contemplated hereby shall have been approved and adopted receipt by the requisite vote Bank of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable a loan modification fee in the Merger shall have been authorized for listing on Nasdaq upon official notice amount of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger62,500. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this This Loan Modification Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and is executed as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with written above. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ("By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPTitle: CFO & VP Corporate Development Title: Relationship Manager TO: SILICON VALLEY BANK Date: FROM: ISTA PHARMACEUTICALS, special counsel INC. The undersigned authorized officer of ISTA PHARMACEUTICALS, INC., a Delaware corporation (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the Company, effective as terms of Section 5.9 of the Closing DateAgreement, substantially and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance with generally GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Agreement.
Appears in 1 contract
Sources: Loan Modification Agreement (Ista Pharmaceuticals Inc)
Conditions. SECTION 8.1 Conditions 4.1 The sale and purchase of the Sale Shares is conditional upon:
4.1.1 no notice having been received from the PRC Ministry of Commerce (“MOFCOM”) and/or the PRC State Administration of Industry and Commerce (“SAIC”) pursuant to Each Party's Obligation to Effect the Merger. Unless waived Provisional Rules on Mergers with and Acquisitions of Domestic Enterprises by Foreign Investors, promulgated by the partiesMinistry of Foreign Trade and Economic Cooperation (the predecessor of MOFCOM), State Administration of Taxation, SAIC and State Administration of Foreign Exchange on 7 March 2003 and effective as of 12 April 2003, ordering an anti-trust filing to be made in respect of the respective obligations sale and purchase of each party the Sale Shares pursuant to effect this Agreement; in the Merger event such order to file is received, this condition shall be subject satisfied after the Vendor and the Purchaser have jointly made the necessary anti-trust filing and MOFCOM and SAIC having consented to the fulfillment at or prior to the Closing Date sale and purchase of the following conditions:Sale Shares pursuant to this Agreement;
(a) this Agreement 4.1.2 the Warranties not being untrue or inaccurate or misleading at Completion which results in a Material Adverse Effect;
4.1.3 the Vendor having complied fully with the obligations specified in Clause 9.1 and the transactions contemplated hereby shall have been approved and adopted by the requisite vote otherwise having performed all of the stockholders covenants and agreements required to be performed by it under this Agreement;
4.1.4 no statute, regulation or decision which would prohibit, restrict or materially delay the sale and purchase of the Company under applicable law and applicable listing requirementsSale Shares or the operation of any member of the Group after Completion having been proposed, enacted or taken by any governmental or official authority;
(bi) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇. ▇▇▇▇ L.L.P.Peixue having entered into a license contract with CTF, certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived acknowledged by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respectShandong Research Institute, substantially in the form of Exhibit 8.2(bset out in Schedule 9 (the “Patent License Contract”); --------------
(cii) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Hongjie having executed a license contract with CTF, acknowledged by Shandong Research Institute, substantially similar in form to the Technology License Contract; ("iii) ▇▇. ▇▇▇▇, ▇▇". ▇▇ and, if necessary, the Shandong Research Institute having executed the relevant governmental license recordal forms requested by Purchaser in respect of the Technology License Contracts referred to in sub-clauses (i) and (ii) above; and (iv) the Shandong Research Institute having executed a Confirmation and Declaration substantially in the form set out in Schedule 15;
4.1.6 the approval of the shareholders of the Vendor (or, if required under the Listing Rules, the approval of the independent shareholders of the Vendor), being obtained in respect of the sale and purchase of the Sale Shares pursuant to this Agreement;
4.1.7 there being no change in the business or operations of the Group which has a form Material Adverse Effect any time between the date of this Agreement and Completion;
4.1.8 each of the Key Employees having entered into a Key Management Retention Agreement;
4.1.9 the Purchaser’s Solicitors (through Chiang Ling Li) shall have been provided with the Formulation Information and shall not have within a period of fifteen (15) Business Days (counted, for the sake of clarity, beginning with the first Business Day after Formulation Information is actually delivered) determined based on a review of the Formulation Information so provided, that one or more claim of a published patent in the PRC or patent application in the PRC is infringed by one or more of the products which are the subject of the Formulation Information. The foregoing condition shall be deemed satisfied unless the Purchaser’s Solicitors’ conclusion that there is attached hereto as Exhibit ------- 8.2(i)such infringement, with detailed findings, is provided to the Vendor’s Solicitors in writing on or before the end of such fifteen (15) Business Day period. ------
SECTION 8.3 Conditions to Obligations For purposes of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiaryforegoing, the obligations of Parent and Subsidiary Vendor shall not be required to effect provide the Merger shall be subject Formulation Information to the fulfillment at or prior to Purchaser’s Solicitors as stated above unless and until the Effective Time of the additional following conditions:
(a) the Company Conditions set out in Clauses 4.1.5 and 4.1.8 shall have performed been fulfilled or waived in all material respects its agreements contained in this Agreement required writing.(pursuant to be performed on or prior Clause 4.2); and
4.1.10 a contract to terminate the Closing Date existing license granted by ▇▇. ▇▇▇▇ Peixue and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as any other licensor(s) thereto (if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory any) to Parent to that effect;
(b) Parent shall have received an opinion from ▇Shandong ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇Biotechnology Engineering Co. Ltd. in respect of eye wash solutions containing hyaluronic acid and salts and their preparation methods and technology which are the subject of patent application number 200410035712.3 at an aggregate termination costs not exceeding RMB150,000 and and such termination contract must contain a provision obliging and requiring Shandong ▇▇▇▇▇ LLPBiotechnology Engineering Co. Ltd. to cease production, special counsel use and sale of all products containing the foregoing Intellectual Property by December 31, 2005.
4.2 Save for the Conditions set out in Clauses 4.1.1, 4.1.4 and 4.1.6, the Purchaser may waive in whole or in part all or any of the Conditions at any time by notice in writing to the Company, effective as Vendor.
4.3 The Vendor shall in good faith use his best efforts and proceed diligently to procure the fulfilment of the Closing DateConditions set out in Clauses 4.1.3, substantially 4.1.5, 4.1.6, 4.1.7, 4.1.8 and 4.1.10 on or before the date specified in Clause 4.5 below, provided that best efforts shall not require the form set forth payment of amounts which are not ordinarily required to be paid to ensure the performance by a third party of actions necessary to ensure the fulfilment of the relevant Condition.
4.4 The Vendor shall give the Purchaser notice in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form writing and substance provide relevant evidence reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants the Purchaser of the satisfaction of each relevant Condition (save for the CompanyConditions set out in Clauses 4.1.1, dated the date 4.1.2, 4.1.3, 4.1.4 and 4.1.7) within three (3) Business Days of becoming aware of the Proxy Statement, same.
4.5 In the effective date event that any of the Registration Statement and Conditions (other than the Closing Date (or such other date reasonably acceptable to ParentConditions set out in Clause 4.1.2) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
fulfilled (hor waived pursuant to Clause 4.2) by September 30, 2005 (the Company “Drop Dead Date”), then neither the Purchaser nor the Vendor shall have delivered be bound to Parent its audited consolidated financial statements for proceed with the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average sale and purchase of the published projections Sale Shares and this Agreement shall cease to be of the securities analysts' any effect except Clauses 1, 10, 11, 12, 13, 14 and 15 which regularly follow the Company shall remain in force and which financial statements shall reflect all normalsave in respect of claims arising out of any antecedent breach of this Agreement, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
provided that (i) Coopers & ▇▇▇▇▇▇▇ L.L.P.if the Condition(s) which has (have) not been fulfilled by the Drop Dead Date is (are) any of the Conditions set out in any of Clauses 4.1.3, public accountants for Parent 4.1.5, 4.1.6, 4.1.7, 4.1.8 or 4.1.10 and Subsidiarysuch non-fulfilment is the result of the Vendor’s breach of its obligations under Clause 4.3 in relation to such Condition(s), then the Purchaser shall have delivered a letterthe right upon notice in writing to the Vendor, dated to extend the Closing last date for the fulfilment of the said Condition(s) past the Drop Dead Date and this Agreement shall remain in full force and effect in all respects; and (ii) if the fifteen (15) Business Day period referred to in Clause 4.1.9 is not completed prior to the Drop Dead Date, addressed then the Drop Dead Date shall be automatically extended to Parentallow for the end of such fifteen (15) Business Day period and all references in this Agreement to the Drop Dead Date shall be construed accordingly.
4.6 In the event that the Purchaser shall waive any of the Conditions (save for the Conditions set out in Clauses 4.1.1, 4.1.4 and 4.1.6), such waiver shall not, except to the limited extent set forth below, imply that the Purchaser is not relying on the Warranties but rather only that it is prepared, in form reliance upon the Warranties and substance reasonably satisfactory such comfort, if any, as it has taken from its investigations, to Parent stating proceed with the transaction. Without limiting the requirement of Clause 5.3.1.7, each Party agrees to promptly notify the other Party in writing upon becoming aware of any breach of any of the Warranties by the Vendor after the date of this Agreement and before Completion. In the event the Purchaser elects to proceed to Completion after being notified by the Vendor in writing that the Merger will qualify as Vendor is aware of a pooling-of-interests transaction under APB 16breach of a Warranty which cannot be cured, notwithstanding the best efforts of the Vendor, the Purchaser will, in such case, no longer be entitled to make a claim in respect of such breach of Warranty after the Completion Date.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Bausch & Lomb Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective 2.1 The obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditionsUnderwriter under Clause 6 are conditional upon:
(a1) the Stock Exchange granting or agreeing to grant (subject to allotment) and not having withdrawn or revoked the listing of and permission to deal in the Rights Shares (in their nil-paid and fully-paid forms);
(2) the filing and registration of the Prospectus Documents (together with any other documents required by applicable law or regulation to be annexed thereto) with the Companies Registry in Hong Kong by no later than the Prospectus Posting Date;
(3) the posting of the Prospectus Documents to the Qualifying Shareholders by no later than the Prospectus Posting Date;
(4) this Agreement and the transactions contemplated hereby shall have not having been approved and adopted terminated by the requisite vote Underwriter pursuant to the terms hereof on or before the Latest Time for Termination;
(5) there being no breach of the stockholders undertakings and obligations of the Company under applicable law and applicable listing requirements;
(b) the shares terms of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16this Agreement; and
(i6) all required material consents none of the Underwriter together with such parties acting in concert (having the meaning as set out in the Takeovers Code) with it nor any of the sub-underwriters and approvals of lenders who have advanced $5,000,000 their respective parties acting in concert (having the meaning as set out in the Takeovers Code) shall be interested in 30% or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation issued share capital of the Company to Effect the Merger. Unless waived as enlarged by the Company, Rights Issue or otherwise be obligated to make mandatory general offer obligation under the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss Takeovers Code as a result of the Merger, except to Underwriter and/or the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in sub-underwriters taking up the form of Exhibit 8.2(b); --------------Untaken Shares under this Agreement.
(c) the 2.2 The Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel use all reasonable endeavours to Parent and Subsidiary, dated procure the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date fulfillment of the Proxy StatementConditions Precedent in Clauses 2.1(1) to (3) by the Latest Time for Acceptance and in particular shall furnish such information, supply such documents, pay such fees, give such undertakings and do all such acts and things as may be necessary in connection with the effective date fulfillment of all the Registration Statement Conditions Precedent.
2.3 The Conditions Precedent set out in Clauses 2.1(1) to (3) and (6) are incapable of being waived by the Underwriter and the Closing Date (Company. The Underwriter may waive the condition set out in Clause 2.1(5) in whole or such other date reasonably acceptable in part by written notice to the Company.
2.4 If the Conditions Precedent set out in Clause 2.1 are not satisfied (or, if applicable, waived by the Underwriter) with respect by the Latest Time for Acceptance and/or the Conditions Precedent in Clauses 2.1(5) do not remain fulfilled (unless waived by the Underwriter pursuant to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(eClause 2.3) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed up to the stockholders of the CompanyLatest Time for Termination, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true terminate (save in respect of any provisions of Clause 8.2, 11, 14 and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b16) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event party hereto will have any claim against any other party for cost, damages, compensation or events shall otherwise (save in respect of any rights or obligations which may have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all accrued under this Agreement prior to such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16termination).
Appears in 1 contract
Sources: Underwriting Agreement
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger This Amendment shall be subject to the fulfillment at or prior to the Closing Date become effective only upon satisfaction in full of the following conditionsconditions precedent:
(a) this Agreement and the transactions contemplated hereby Agent shall have been approved received on or before the First Amendment Closing Date the following, each in form and adopted substance satisfactory to Agent (and, where indicated, the applicable Lender) and, unless indicated otherwise, dated as of the First Amendment Closing Date:
(i) counterparts of this Amendment, duly executed by the requisite vote of the stockholders of the Company under applicable law Borrowers and applicable listing requirements;Lender Group; and
(ii) such other agreements, instruments, approvals, opinions and other documents as Agent or any Lender may reasonably request.
(b) Agent shall have received from the shares Borrowers, for the ratable benefit of Parent Common Stock issuable the Term A Lenders, an amendment fee in the Merger amount of $400,000, which amendment fee shall have been authorized for listing on Nasdaq upon official notice be fully earned as of issuancethe date of this Amendment;
(c) the waiting period applicable The several counsel to the consummation members of the Merger under the HSR Act Lender Group shall have expired received payment, in immediately available funds, of all accrued and unpaid attorneys fees and expenses constituting Lender Group Expenses incurred in connection with this Amendment and the transactions contemplated hereunder or been terminatedreasonably ancillary hereto;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the The representations and warranties of Parent and Subsidiary contained in this Amendment, the Loan Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such dateamended by this Amendment, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement Loan Documents shall be true and correct in all respects on and as of the date hereof, as though made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
date (b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel except to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form extent that such representations and substance reasonably satisfactory warranties relate solely to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4an earlier date);
(e) since No Default or Event of Default shall have occurred and be continuing on the date hereof, there nor shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effectresult from the consummation of the transactions contemplated herein;
(f) all governmental waiversNo injunction, consentswrit, orders and approvals legally required for restraining order, or other order of any nature prohibiting, directly or indirectly, the consummation of the Merger and the transactions contemplated hereby herein shall have been obtained issued and be remain in effect at the Closing Date, and no force by any governmental authority shall have promulgated any statute, rule against Borrowers or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;Lender Group; and
(g) Parent All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (been delivered or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement executed or recorded and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, be in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Agent and its counsel.
Appears in 1 contract
Conditions. SECTION 8.1 Mutual Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the Precedent
5.1 The respective obligations of each party the Parties hereto to effect complete the Merger shall transactions contemplated by this Agreement will be subject to the fulfillment at satisfaction, on or prior to before the Closing Date Date, of the following conditionsconditions precedent, each of which may only be waived, in whole or in part, by the mutual consent of the Parties:
(a) there will not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there will be no proceeding of a judicial or administrative nature or otherwise, brought by a Governmental Entity in progress or threatened that relates to or results from the transactions contemplated hereby shall have been approved and adopted by the requisite vote this Agreement that would, if successful, result in an order or ruling that would preclude completion of the stockholders of transactions contemplated by this Agreement in accordance with the Company under applicable law and applicable listing requirementsterms hereof;
(b) the shares of Parent Common Stock issuable in the Merger shall this Agreement will have been authorized accepted by the TSXV; and
(c) this Agreement will not have been terminated pursuant to Part 8. PhotoChannel shall keep the Vendors informed of progress in relation to the application for listing acceptance of the Agreement by the TSXV and shall notify the Vendors in writing as soon as the Agreement has been accepted by the TSXV whereupon, subject to compliance (or waiver by the relevant Party) with any other conditions precedent, then Closing will take place on Nasdaq upon official notice or before the fifth Business Day after the acceptance by the TSXV. In the event that Closing is delayed because either Party has notified the other in writing pursuant to §5.6 as to the non-compliance with any condition precedent then Closing shall take place on the first Business Day after satisfaction of issuancethe unsatisfied condition precedent.
5.2 The obligations of PhotoChannel to complete the transactions contemplated by this Agreement will also be subject to the fulfilment to the reasonable satisfaction of PhotoChannel of each of the following conditions precedent (each of which is for PhotoChannel's exclusive benefit and may be waived, in whole or in part, by PhotoChannel provided that PhotoChannel may not unreasonably withhold or delay its approval as to such satisfaction):
(a) all positive covenants of the Vendors (including the covenants of the Principal Vendors) under this Agreement to be performed on or before the Closing Date will have been duly performed by each of them in all material respects;
(b) there has been no material breach of the covenants of the Vendors in §4.1;
(c) the waiting period applicable to the consummation Warranties of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger Vendors will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects as at the Closing Date save as Disclosed) as if made on and as of such date (except to the extent such Warranties speak as of an earlier date, in which event such Warranties will be true and correct in all material respects as of such earlier date, or except as affected by transactions contemplated or permitted by this Agreement);
(d) the Vendors shall have delivered to the Purchaser all of the documents set out in §7.2 in form satisfactory to the Purchaser;
(e) between the date made hereof and the Closing Date, there will not have occurred a Material Adverse Change to the WorksMedia Business.
5.3 PhotoChannel may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by PhotoChannel with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by PhotoChannel in complying with its obligations hereunder.
5.4 The obligations of the Vendors to complete the transactions contemplated by this Agreement will also be subject to the fulfillment to the reasonable satisfaction of the Vendors of the following conditions precedent (each of which is for the exclusive benefit of the Vendors and may be waived in whole or in part by the Vendors, provided that the Vendors may not unreasonably withhold or delay their approval as to such satisfaction):
(a) all positive covenants of PhotoChannel under this Agreement to be performed on or before the Closing Date will have been duly performed by PhotoChannel in all material respects;
(b) all Warranties of PhotoChannel under this Agreement will be true and correct in all material respects as of the Closing Date as if made at on and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
date (b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated Warranties speak as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Companyan earlier date, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall event such Warranties will be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such earlier date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;except as affected by transactions contemplated or permitted by this Agreement); and
(bc) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to between the Company, effective as of date hereof and the Closing Date, substantially there will not have occurred a Material Adverse Change in the form set forth in Exhibit 8.3(b) attached hereto; --------------business of PhotoChannel.
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory 5.5 The Vendors may not rely on the failure to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date satisfy any of the Proxy Statement, above conditions precedent as a basis for non-compliance by the effective date of Vendors with their obligations under this Agreement if the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall condition precedent would have been furnished as required satisfied but for a material default by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted Vendors in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together complying with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16obligations hereunder.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger The Closing shall be subject to the fulfillment at satisfaction or prior waiver of the conditions set forth in this Section 3.
3.1. The following are conditions to the Closing Date obligation of the following conditionsTransferors to close the Transactions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote all of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary Ivanhoe Holdings contained in this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effectDate;
(b) on Closing, the Company full amount of the Balance shall have received an opinion been paid in accordance with the provisions of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPthis Agreement, special counsel the Good Faith Deposit shall have been paid to the Company, in form Deposit Escrowee and substance reasonably satisfactory to the Company, effective as Ivanhoe Holdings shall have otherwise complied with or performed all of the Closing Date and based on representations other material terms, covenants or conditions of the Company and Parent, this Agreement to the effect that be complied with or performed by it; and
(ic) the Merger of Subsidiary with and into transactions provided for in the Company pursuant to the Merger Contribution Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Codeshall have been fully completed; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will provided that if such transactions are not recognize gain or loss completed as a result of the Merger, except default of the Transferors under the Contribution Agreement this condition shall be deemed to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) satisfied. The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements conditions contained in this Agreement required to be performed Section 3.1 are intended solely for the benefit of the Transferors. If any of the foregoing conditions is not satisfied on or prior to the Closing Date (or any earlier time, if such earlier time is specified in respect of such condition), the Transferors shall have the right, in their sole and absolute discretion, to waive the condition in question and proceed to Closing hereunder or terminate this Agreement by delivering notice of such termination to Ivanhoe Holdings and after such termination neither the Transferors nor Ivanhoe Holdings shall have any further rights or obligations under this Agreement, except for such rights and obligations which expressly survive the termination of this Agreement, unless the reason for the condition not being satisfied is a breach by Ivanhoe Holdings of any its obligations under this Agreement or a representation and warranty made by Ivanhoe Holdings being incorrect or inaccurate, in which case the provisions of Section 5 shall be applicable.
3.2. The following are conditions to the obligation of Ivanhoe Holdings to close the Transactions:
(a) all of the Transferors’ representations and warranties of the Company contained in this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effectDate;
(b) Parent on Closing, the Transferors shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPdelivered to Ivanhoe Holdings the Contributee Shares subject to no Encumbrances, special counsel to the CompanyTransferors shall have complied with Section 4 in all material respects, effective as and each Transferor shall have otherwise complied with or performed all of the Closing Dateother material terms, substantially in the form set forth in Exhibit 8.3(b) attached heretocovenants and condition of this Agreement to be complied with or performed by it; --------------and
(c) Parent the transactions provided for in the Contribution Agreement shall have received "comfort" letters been fully completed; provided that if such transactions are not completed as a result of the default of the Ivanhoe Contributee under the Contribution Agreement, this condition shall be deemed to have been satisfied. The conditions contained in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants this Section 3.2 are intended solely for the Company, dated the date benefit of Ivanhoe Holdings. If any of the Proxy Statement, the effective date of the Registration Statement and foregoing conditions is not satisfied on or prior to the Closing Date (or an earlier time, if such other date reasonably acceptable earlier time is specified in respect of such condition), Ivanhoe Holdings shall have the right, in its sole and absolute discretion, to Parent) with respect to certain financial statements waive the condition in question and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related proceed to the Company;
(d) Closing hereunder or to terminate this Agreement by delivering notice of such termination to the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 Transferors and after such termination neither the Transferors nor Ivanhoe Holdings shall have been furnished as required by Section 7.4;
(e) since any further rights or obligations under this Agreement, except for such rights and obligations which expressly survive the date hereoftermination of this Agreement, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required unless the reason for the consummation condition not being satisfied is a breach by any Transferors of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule of their obligations under this Agreement or regulation which, when taken together with all a representation or warranty made by such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (party being incorrect or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parentinaccurate, in form and substance reasonably satisfactory to Parent stating that which case the Merger will qualify as a pooling-of-interests transaction under APB 16provisions of Section 5 shall be applicable.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions The Settling Parties agree to Each Party's Obligation support the terms and conditions contained herein. The Settling Parties understand and acknowledge that this settlement is subject to Effect the Merger. Unless waived adoption and approval by the partiesCommission. The Settling Parties shall cooperate in submitting this settlement promptly to the Commission for approval so that it may be implemented in a timely manner. Each Settling Party shall make a witness or witnesses available, as deemed necessary, to answer questions in support of this settlement, or provide such other support as the Commission requests in connection with the hearing on the merits with respect to this matter. The Settling Parties agree to cooperate, in good faith, in the development of any such other information as may be necessary to support and explain the basis of this settlement and to develop and supplement the record supporting its approval accordingly. The Settling Parties expressly condition their support of this settlement upon the Commission’s acceptance of all its provisions, without change or condition. If the Commission does not accept the provisions in their entirety, without change or condition, any party hereto, at its sole option exercised within fifteen (15) days of such Commission order, may withdraw from this settlement, in which event the settlement shall be deemed to be null and void and without effect and shall not be relied upon by any Settling Party to this proceeding or by the Commission for any purpose. The Commission’s acceptance of this settlement does not constitute continuing approval of, or precedent regarding, any particular principle or issue in this proceeding, but such acceptance does constitute a determination that the terms and conditions set forth herein are consistent with RSA 374-G, result in just and reasonable rates, and are consistent with the public interest. The Settling Parties request that, in its order addressing the approvals recommended in this settlement, the respective obligations Commission expressly find that those approvals are unique to this case and should not be viewed as having precedential effect with respect to any particular principle or issue in this proceeding for any other case or situation or for any other reasons. The Settling Parties enter into this settlement to avoid further expense, uncertainty, and delay in resolving the matters at issue in this proceeding. By its execution of each party to effect the Merger this settlement agreement, no Settling Party shall be subject deemed to have accepted or consented to the fulfillment facts, principles, methods, or theories employed in arriving at or prior to the Closing Date terms of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Actsettlement, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form expressly set forth in Exhibit 8.2(c) attached hereto; --------------
(d) this settlement agreement, no Settling Party shall be deemed to have agreed that such terms are or would be appropriate for resolving matters at issue in any different proceeding or context. Each Settling Party shall be free to take the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date same or a different position on any of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (issues resolved hereby in any such different proceeding or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall context. The discussions that produced this settlement have been no changes conducted on the express understanding that have, all offers of settlement relating thereto are and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Companyconfidential, shall have delivered be Liberty Utilities (Granite State Electric) d/b/a letter, dated the Closing Date, addressed Liberty Utilities Proposed Battery Pilot Project Benefit/Cost Analysis 1 Year 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 4 Local Network System (LNS) rate( $/kW-year) $23.57 $24.46 $25.17 $25.42 $26.61 $27.85 $29.14 $30.50 $31.92 $33.41 $34.97 $36.60 $38.30 $40.09 $41.96 5 Avoided Capacity Cost rate ($/kW-year) $100.00 $73.90 $59.90 $57.60 $58.80 $61.20 $65.70 $71.20 $76.90 $82.50 $88.10 $83.90 $82.50 $88.10 $83.90 6 Regional Network System (RNS) Charges $87,750 $92,250 $96,750 $101,250 $105,968 $110,906 $116,075 $121,484 $127,145 $133,070 $105,846 $87,457 $69,157 $51,092 $0 $1,406,199 7 Local Network System (LNS) Charges $17,675 $18,347 $18,876 $19,066 $19,955 $20,884 $21,858 $22,876 $23,942 $25,058 $19,932 $16,469 $13,023 $9,621 $0 $267,581 8 Avoided Capacity Costs $75,000 $55,425 $44,925 $43,200 $44,100 $45,900 $49,275 $53,400 $57,675 $61,875 $50,217 $37,755 $28,050 $21,144 $0 $667,941 9 Total Benefits $180,425 $166,022 $160,551 $163,516 $170,023 $177,691 $187,207 $197,760 $208,762 $220,003 $175,994 $141,680 $110,230 $81,857 $0 $2,341,721 Costs 10 Revenue Requirement - Batteries ($222,944) ($205,447) ($194,668) ($183,107) ($170,984) ($157,475) ($143,958) ($132,190) ($120,419) ($106,905) $0 $0 $0 $0 $0 ($1,638,097) 11 Revenue Requirement - Cell Based Meters ($7,549) ($7,200) ($6,917) ($6,632) ($6,348) ($6,062) ($5,776) ($5,490) ($5,199) ($4,906) ($4,614) ($4,322) ($4,029) ($3,737) $0 ($78,782) 12 Monthly Cellular Reading Cost ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($6,000) ($5,700) ($5,400) ($5,100) ($4,800) $0 ($81,000) 13 Cogsdale Programming Costs ($102,185) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 ($102,185) 14 NEM Credit for battery ($15,782) ($15,309) ($14,835) ($14,362) ($13,888) ($13,415) ($12,941) ($12,468) ($11,994) ($11,521) ($10,495) ($9,517) ($8,585) ($7,702) $0 ($172,814) 15 Meter MV-90 Programming Costs ($107,500) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 ($107,500) 16 Total Costs ($461,960) ($233,956) ($222,420) ($210,101) ($197,220) ($182,952) ($168,675) ($156,148) ($143,612) ($129,333) ($20,809) ($19,238) ($17,715) ($16,239) $0 ($2,180,378) 17 Net Benefit to the Company, All Customers ($281,535) ($67,935) ($61,869) ($46,585) ($27,197) ($5,261) $18,532 $41,612 $65,150 $90,670 $155,185 $122,442 $92,515 $65,618 $0 $161,343 Net Present Value Calculation 18 Required Rate of Return 7.69% 19 Net Present Value of Option ($138,037) 20 Net Present Value of Benefits $1,432,205 21 Net Present Value of Costs ($1,570,241) 1 Year of installation 2 Total units in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a poolingpilot 3 Based on ISO-of-interests transaction under APB 16; and
NE forecast 4 Based on previous bills from National Grid 5 AESC 2018 Wholesale Capacity Values Cleared (i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"FCA price), a form column j on p 273 6 Line 3 x amount of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations kW reduced 7 Line 4 x amount of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations kW reduced 8 Line 5 x amount of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment kW reduced at or prior to the Effective Time ISO NE concident peak 9 Sum of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.lines 3 through 8
Appears in 1 contract
Sources: Settlement Agreement
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective The obligations of Mayne Pharma under clause 4.1(i) and of Bidder under clause 4.2(h) do not become binding on the parties and the Scheme must not take place until each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditionsconditions has been fulfilled or waived in accordance with clause 3.6:
(a) this Agreement and either:
(i) the transactions contemplated hereby shall have been approved and adopted by the requisite vote Treasurer of the stockholders Commonwealth of Australia (the “Treasurer”) or a delegate of the Company Treasurer has provided written advice or confirmation which is unconditional or subject only to conditions reasonably acceptable to Bidder that there is no objection under applicable law the Foreign Acquisitions and applicable listing requirementsTakeovers ▇▇▇ ▇▇▇▇ (Commonwealth) or foreign investment policy of Australia to the proposed acquisition by Bidder of the Mayne Pharma Shares; or
(ii) the Treasurer has ceased to be empowered to make any order under the Foreign Acquisitions and Takeovers ▇▇▇ ▇▇▇▇ (Commonwealth) in relation to the proposed acquisition by Bidder of the Mayne Pharma Shares;
(b) Mayne Pharma Shareholders approve the shares Scheme by the majorities required under section 411(4)(a)(ii) of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuanceCorporations Act;
(c) no Mayne Pharma Material Adverse Change occurs after the waiting period applicable to date of this document and before 8.00 am on the consummation of the Merger under the HSR Act shall have expired or been terminatedSecond Court Date;
(d) no Mayne Pharma Prescribed Occurrence occurs or (in the Registration Statement shall have become effective case of a Mayne Pharma Prescribed Occurrence not disclosed in accordance with the provisions Disclosure Letter) becomes known to Bidder after the date of this document and before 8.00 am on the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authoritiesSecond Court Date;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be Mayne Pharma Warranties are true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of this document and as at 8.00 am on the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse EffectSecond Court Date;
(f) the Bidder Warranties are true and correct in all governmental waivers, consents, orders, material respects on the date of this document and approvals legally required for as at 8.00 am on the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Second Court Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to ParentCourt approves the Scheme in accordance with section 411(4)(b) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawnCorporations Act;
(h) the Company waiting period and any extension thereof applicable to the Scheme under the HSR Act shall have delivered been terminated or shall have expired;
(i) no Government Authority has undertaken a judicial proceeding seeking to Parent its audited consolidated financial statements for enjoin, restrain or otherwise prohibit or impose conditions on the year ended December 31Scheme which remain in effect as at 8.00 am on the Second Court Date;
(j) no Government Authority has issued an order, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, decree or ruling prohibiting or imposing conditions on the Scheme which financial statements shall reflect earnings which are not materially less than remains in effect as at 8:00 am on the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial conditionSecond Court Date; and
(k) prior to the Second Court Date Mayne Pharma has confirmed in writing to Bidder that each member of the Mayne Pharma Group has, in relation to each contract to which it is party that, if that contract continued on its current terms after the Effective Date would require Bidder, any Related Body Corporate of Bidder or any of their respective officer or employees to act in a manner inconsistent with the US Trade Laws (each a “Regulated Contract”), either:
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P.amended the terms of the Regulated Contract conditional on the Scheme becoming Effective and on terms approved by the Bidder (such approval not unreasonably to be withheld) so that Regulated Contract ceases to involve or relate to, public accountants for Parent and Subsidiarydirectly or indirectly, shall have delivered a letter, dated any destination or entity the Closing Date, addressed target of US Trade Laws; or
(ii) taken all steps within its power to Parent, in form and substance reasonably satisfactory to Parent stating that terminate the Merger will qualify as a pooling-of-interests transaction under APB 16Regulated Contract.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions The obligation of FMS to Each Party's Obligation to Effect consummate the Merger. Unless waived by Transaction on the parties, the respective obligations of each party to effect the Merger shall be Closing Date is subject to the fulfillment at or prior to the Closing Date satisfaction of the following conditions:
conditions (a) this Agreement and any or all of which may be waived by FMS, at the transactions contemplated hereby shall have been approved and adopted by the requisite vote sole option of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable FMS, in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable whole or in part to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted extent permitted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; andapplicable law):
(i) all required material consents and approvals each of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent each of HOLL, Baseline and Subsidiary Newco contained in this Agreement herein shall be true and correct in ▇▇ all material respects on and as of the date Closing Date with the same force and effect as though the same had been made and on and as of the Closing Date;
(ii) Each of HOLL, Baseline and Newco shall have performed and complied, ▇▇ all material respects, with the covenants and provisions of this Agreement required to be performed or complied with by it between the date hereof and the Closing Date;
(iii) FMS shall have received from each of HOLL, Baseline and Newco a certificate to the effect set f▇▇▇▇ in clauses (i) and (ii) above, dated the Closing Date as if made at and as signed by a duly authorized officer of such date, and the Company parties;
(iv) FMS shall have received a certificate of the Chairman Secretary of each of HOLL, Baseline and Newco, dated the Closing Date, setting forth resolutions of the Board of Directors of each or such parties authorizing the execution and Chief Executive Officer, delivery of this Agreement and each document and instrument required to be executed and delivered by such parties hereunder and the President or a Vice President of Parent and consummation of the President transactions contemplated hereby and Chief Executive Officer thereby, and certifying that such resolutions were duly adopted and have not been rescinded or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective amended as of the Closing Date and based on representations Date;
(A) no Legal Proceeding shall have been instituted or threatened or claim or demand made against HOLL or Baseline seeking to restrain or prohibit or to obt▇▇▇ damages with respect to the consummation of the Company transactions contemplated by this Agreement, or which might, in the reasonable opinion of FMS, result in a material adverse change in the business, assets, properties, liabilities, financial condition or results of operations of Baseline and Parent(B) there shall not be in effect any Order of a Government Body of competent jurisdiction restraining, to enjoining or otherwise prohibiting the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) consummation of the Code; transactions contemplated by this Agreement;
(iivi) ParentEach of HOLL, Subsidiary Baseline and Company will each Newco shall have executed and delivered ▇▇ FMS (A) all documents to be a party to delivered at the reorganization within Closing in accordance with the meaning terms of Section 368(b) of this Agreement, including, without limitation, the Code; Stock Purchase Agreement, the stock certificate representing the Purchased Stock and the other agreements and documents with respect thereto and (iiiB) such other documents and instruments as FMS may reasonably request and which each of HOLL, Baseline or Newco can obtain with reasonable commerc▇▇▇ efforts in order to consummate the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b)transactions contemplated by this Agreement; --------------and
(cvii) the Company Baseline shall have received an opinion or opinions from executed and delivered to each of Rafi Gordon, Alex Amin, Yash Dhillon and Lauren Boudreau employment ▇gr▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇n ▇▇▇ ▇▇▇▇ & ▇▇ Exhib▇▇ ▇▇▇-▇ ▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached ▇-▇ hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Sources: Transfer and Shareholders Agreement (Hollywood Media Corp)
Conditions. SECTION 8.1 Conditions 3.1 The Purchaser shall procure that its agents and advisors shall forthwith upon the signing of this Agreement conduct such review of the assets, liabilities, operations and affairs of the Group as it may consider appropriate and the Company and the Vendor shall provide and procure the Company and its agents to Each Party's Obligation to Effect provide such assistance as the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger Purchaser or its agents may require in connection with such review.
3.2 Completion shall be conditional upon and subject to the fulfillment at or prior to the Closing Date of the following conditionsto:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by Purchaser being satisfied at its absolute discretion with the requisite vote results of the stockholders of the Company due diligence review to be conducted under applicable law and applicable listing requirementsClause 3.1;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Actno temporary restraining order, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree issued by any federal court of competent jurisdiction or state court which prevents other competent government authority preventing the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, transaction contemplated by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & IngersollWarranties remaining true, special counsel to Parent complete and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially accurate in the form set forth in Exhibit 8.2(c) attached heretoall material respects; --------------and
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated there has not been any Material Adverse Change as a whole since the date of this Agreement.
3.3 The Vendor shall use its reasonable endeavours to assist the Proxy StatementPurchaser in connection with the due diligence review to be conducted under Clause 3.1 and, in particular, shall procure that all information and documents which are in the possession or under the control of the Vendor and/or the Company required pursuant to the GEM Listing Rules, and other applicable rules, codes and regulations whether in connection with the preparation of all circulars, reports, documents, independent advice or otherwise are given as soon as possible to the Purchaser, the effective date Stock Exchange, the SFC and other relevant regulatory authorities.
3.4 The Purchaser may at any time at its absolute and sole discretion waive in writing the conditions (a), (c) and/or (d) (in whole or in part) set out above. The other conditions set out in Clause 3.2 above are incapable of being waived. If the Registration Statement and the Closing Date conditions set out in Clause 3.2 have not been satisfied (or waived as aforesaid) on or before 29 April 2023, or such other date reasonably acceptable to as the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues Vendor and the total and per share amounts of net income related to Parent;
Purchaser may agree in writing (e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing “Long Stop Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"”), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true cease and correct in all respects on terminate and as of the date made neither party shall take any action to claim for damages or to enforce specific performance or any other rights and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16remedies thereafter.
Appears in 1 contract
Sources: Agreement for Transfer of Shares
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:4.1 Conditions
(a) the representations and warranties given by the Sellers Group in this Agreement and the transactions contemplated hereby agreement shall have been approved true, accurate and adopted by not misleading when made and shall be true, accurate and not misleading as of Completion with the requisite vote same force and effect as if made as of Completion, except to the stockholders extent such representations and warranties are as of another date, in which case, such representations and warranties shall be true, accurate and not misleading as of that date with the Company under applicable law same force and applicable listing requirements;effect as if made as of Completion.
(b) the shares of Parent Common Stock issuable representations and warranties given by the Purchaser Group in the Merger this agreement shall have been authorized for listing on Nasdaq upon official notice true, accurate and not misleading when made and shall be true, accurate and not misleading as of issuance;Completion with the same force and effect as if made as of Completion, except to the extent such representations and warranties are as of another date, in which case, such representations and warranties shall be true, accurate and not misleading as of that date with the same force and effect as if made as of Completion.
(c) the waiting period applicable to the consummation of the Merger under the HSR Act Sellers shall have expired or been terminatedperformed and complied with its obligations and covenants under clause 5;
(d) the Registration Statement PRC Merger Authority shall have become effective in accordance with approved the provisions of the Securities ActAcquisition, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC without attaching any conditions or any state regulatory authoritiesobligations;
(e) no preliminary the Purchaser and its applicable Affiliates shall have obtained all such consents, approvals and waivers, and licences and authorisations of and satisfied all such filings and registrations, with any governmental or permanent injunction statutory agency or other order authority, in each case, as is deemed mandatory or decree by any federal or state court which prevents necessary for the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted)this Transaction based on Purchaser’s knowledge after due inquiry;
(f) no action the Purchaser shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency deposited Completion Cash Payment in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or Escrow Account one day prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Completion Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company applicable members of the Sellers Group shall have received from ▇▇▇▇▇▇▇▇▇ & Companyobtained all necessary consents, Inc. (approvals and waivers, and licences and authorisations of, and satisfied all filings and registrations, with, any governmental or other nationally recognized investment banking firm reasonably acceptable statutory agency or authority as may be relevant and contemplated herein to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed give effect to the stockholders of the Company, to the effect that the consideration to be received transactions contemplated by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;this agreement; and
(h) Deloitte & Touche LLPno provision of any applicable law and no judgment, independent public accountants for injunction, order or decree shall prohibit the Company, shall have delivered a letter, dated consummation of Completion or materially increase the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time costs of the additional following conditions:
(a) the Company shall have performed Purchaser in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) connection with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16hereby.
Appears in 1 contract
Sources: Share Purchase Agreement (ASE Technology Holding Co., Ltd.)
Conditions. SECTION 8.1 Conditions The obligations of the Underwriters to Each Party's Obligation purchase the Firm Shares and the Optional Shares, as the case may be, at any Closing Date, and the other obligations of the Underwriters hereunder will be subject, in your reasonable discretion, to Effect the Merger. Unless waived accuracy of the representations and warranties on the part of the Company and the Selling Shareholders herein, both at the Execution Time and at and as of each Closing Date, the accuracy, in your reasonable discretion, of the statements of Company officers made pursuant to the provisions hereof, and the timely performance by the parties, Company and the respective Selling Shareholders of their obligations of each party to effect the Merger shall be subject hereunder and to the fulfillment at or prior to the Closing Date of the following conditionsadditional conditions precedent:
(a) If the Registration Statement is not effective at the time of execution of this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) Agreement, the Registration Statement shall have become effective not later than 5:00 p.m. Boston time on the date of this Agreement or at such later date and time as you may approve in writing. If the Company has elected to rely upon Rule 43OA of the Rules, the price of the Stock and any other information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules within the prescribed time period, and, prior to the Closing Date, the Company shall have provided evidence satisfactory to the Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the provisions requirements of Rule 430A of the Securities Act, Rules.) No order preventing or suspending the use of any Preliminary Prospectus or the Prospectus shall have been made or shall be in effect and no stop order suspending such the effectiveness of the Registration Statement or any post-effective amendment thereof shall have been issued and remain in effect and no proceeding for that purpose the issuance of such an order shall have been instituted initiated or threatened by the SEC Commission or any Blue Sky or other securities authority or any jurisdiction, and any request on the part of the Commission or any Blue Sky or other securities authority of any jurisdiction for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been disclosed to you and complied with to the reasonable satisfaction of you and counsel to the Underwriters.
(b) You shall not have advised the Company that the Registration Statement or the Prospectus contains an untrue statement of fact which, in your opinion, is material or omits to state regulatory authoritiesa fact which, in your opinion, is material or is required to be stated therein or is necessary to make the statements therein not misleading.
(c) At the Execution Time and at each Closing Date, you shall have received a letter, dated the date of delivery thereof, of Ernst & Young in form and substance satisfactory to you, confirming that they are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable Rules and stating in effect that:
(i) The financial statements and schedules audited by them and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related Rules;
(ii) The amounts under the headings "Summary Financial Information" and "Selected Financial Data" included in the Registration Statement and the Prospectus agree with the corresponding amounts in the audited and unaudited financial statements of the Company from which such amounts were derived;
(iii) On the basis of performing the procedures specified by the American Institute of Certified Public Accountants for review of interim financial information as described in SAS 71, and a reading of the latest available unaudited financial statements of the Company and certain other information, inspection of the minutes of the meetings of the stockholders and the Board of Directors of the Company, inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to the date of the latest audited financial statements included in the Registration Statement and the Prospectus and such other inquiries and procedures as may be specified in such letter, nothing came to their attention which caused them to believe that:
(A) As of a specified date not more than five days prior to the date of delivery of such letter, there were any changes in the capital stock of the Company or any increase in long-term debt of the Company, or any decreases in net current assets or stockholders' equity of the Company, as compared with amounts shown on the Company's 1996 unaudited financial statements;
(B) For the period from December 31, 1996 to a specified date not more than five days prior to the date of delivery of such letter, there were any decreases in combined net sales or decreases in income from operations or the total or per share amounts of net income, or any decreases or increases, as the case may be, in other items specified by you, in each case as compared with comparable periods in the preceding year, except in each case for increases or decreases which the Registration Statement and the Prospectus disclose, have occurred or may occur; and
(C) They have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement and the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company or are derived directly from such records by analysis or computation) with the results obtained from a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(d) You shall have received from Ernst & Young a letter, in accordance with A.U. Section 9325-Auditing Interpretations of Section 325 (February 1989) of the American Institute of Certified Public Accountants (the "Interpretation"), stating that in planning and performing their audit of the audited financial statements included or incorporated by reference in the Registration Statement, they noted no matters involving the Company's internal control structure and its operation that they consider to be material weaknesses as defined in the interpretation.
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger On each Closing Date, you shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any received a written opinion, dated such injunctionClosing Date, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers Ropes & ▇▇▇▇▇▇▇ L.L.P., certified public accountants counsel for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and ParentUnderwriters, to the effect that that:
(i) The Company is a corporation duly organized, validly existing and in good standing under the Merger laws of Subsidiary Delaware, with corporate power to own its properties and into conduct its business as described in the Prospectus, and is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; maintains an office or owns or leases property;
(ii) ParentThe Subsidiaries are corporations duly organized, Subsidiary validly existing and in good standing under the laws their respective states of incorporation, with corporate power to own their respective properties and conduct their respective businesses, and are duly qualified and in good standing as foreign corporations in each jurisdiction in which the Company will each be a party to the reorganization within the meaning of Section 368(b) maintains an office or owns or leases property; and all of the Code; outstanding shares of capital stock of the Subsidiaries are owned directly by the Company free and clear of any claim, lien, encumbrance, equity, security interest or other restriction;
(iii) The Company has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement, and to issue and sell the stockholders Stock;
(iv) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Company;
(v) The authorized, issued and outstanding capital stock of the Company will not recognize gain or loss is as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
the Capitalization table contained in the Prospectus for the date set forth thereunder (d) with the Company shall have received "comfort" letters exception of shares of restricted stock disclosed in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent the footnote thereto). The Stock and Subsidiary, dated the other shares of Common Stock issued and outstanding on the date of such opinion have been, duly authorized and validly issued and are fully-paid and nonassessable, with no personal liability attaching to the Proxy Statementownership thereof. The authorized, issued and outstanding stock of the effective date of Company conforms in all material respects to the statements in relation thereto contained in the Registration Statement and the Closing Date (or such other date reasonably acceptable Prospectus. The form of Certificate used to evidence the Stock is in due and proper form. The issuance of the Stock to the Underwriters is not subject to (A) statutory preemptive rights or voting or transfer restrictions, (B) preemptive rights or voting or transfer restrictions under the Company's Restated Certificate of Incorporation, as amended, or Bylaws or, (C) with respect to certain financial statements such counsel's knowledge, any contractual preemptive rights or voting or transfer restrictions (other than pursuant to federal and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parentstate securities laws);
(evi) since None of (A) the date hereofexecution, there shall delivery, and performance of this Agreement, (B) the consummation of the transactions contemplated by this Agreement, including, without limitation, the issuance, sale and delivery of the Firm Shares and the Optional Shares, if any, or (C) compliance with the terms and provisions of this Agreement will (1) conflict with or result in a breach or default or require consent under any agreement listed as an exhibit to the 1996 Form 10-K or the Registration Statement, (2) violate or conflict with any provisions of the Restated Certificate of Incorporation, as amended, or Bylaws of the Company, (3) violate any judgment, decree or order known to such counsel, or law or regulation, of any court or governmental agency, entity or instrumentality binding upon the Company or any Subsidiary or any of their properties, except that such counsel need express no opinion as to state securities or Blue Sky laws or (4) require obtaining the consent or authorization for, or filing with, any governmental agency or entity or any court except such as have been obtained and made under the Securities Act and such as may be required under state securities or Blue Sky laws as to which such counsel need express no changes that haveopinion; such counsel need express no opinion in this paragraph (vi) as to compliance with the anti-fraud provisions of the federal or state securities laws;
(vii) To such counsel's actual knowledge, no default exists, and no event or events shall have has occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when with notice or lapse of time or both, would constitute a default, in the due performance and observance of any term, covenant or condition of any indenture, mortgage, agreement or instrument to which the Company or any Subsidiary a party or by which the Company or any Subsidiary or any of their respective properties or assets may be bound or affected except for such default or event which, individually or taken together with all such promulgationsother defaults or events, would materially impair not have a material adverse effect on the value to Parent business, results of operations, prospects, condition (financial or otherwise) or the material assets or properties of the MergerCompany and the Subsidiaries taken as a whole;
(gviii) To the such counsel's actual knowledge, neither the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Companynor any Subsidiary is in violation of any term or provision of its Certificate of Incorporation or Bylaws or of any judgment, Inc. (decree, or other nationally recognized investment banking firm reasonably acceptable order known to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawncounsel;
(hix) Deloitte & Touche LLPThe Registration Statement, independent public accountants the Preliminary Prospectus and the Prospectus and each amendment or supplement thereto (except for the Companyfinancial statements and notes and schedules thereto and other financial or accounting information included therein, shall have delivered a letter, dated the Closing Date, addressed as to the Company, in which such counsel expresses no opinion) comply as to form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its with the requirements of the Securities Act and the Rules; and the documents incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus and each amendment or supplement thereto, when they became effective under the Act or were filed with the Commission under the Exchange Act, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the Rules;
(x) To the knowledge of such counsel, all contracts, agreements contained in this Agreement and other documents of a character required to be performed on described in the Prospectus or prior documents incorporated therein by reference or filed as exhibits to the Closing Date Registration Statement or documents incorporated therein by reference have been so described or filed as exhibits;
(xi) The Registration Statement is effective under the Securities Act, and any required filing of the representations Prospectus or any supplement thereto pursuant to Rule 424(b) has been made in the manner and warranties within the time period required by Rule 424(b). To such counsel's knowledge, no order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereof, has been issued and no proceedings therefor have been instituted or are threatened, pending or contemplated;
(xii) To the knowledge of such counsel, there are no legal or governmental proceedings or investigations pending or threatened to which the Company or any Subsidiary is or would be a party or to which any of their respective property is subject (A) which are required to be described in the Registration Statement or the Prospectus or documents incorporated therein by reference and which are not so described or (B) which might prevent the consummation of the transactions contemplated by this Agreement;
(xiii) To the knowledge of such counsel, except as described in the Prospectus, no holder of any security of the Company has any right to require or participate in the registration under the Securities Act of the Common Stock or any other security to be effected by the Registration Statement except for such rights as have been waived;
(xiv) To the extent that the statements contained in this Agreement shall be true the Prospectus under the headings "Risk Factors-Antitakeover Provisions", "Risk Factor - Shares Eligible for Future Sale", "Business-Environmental/Legal Proceedings", "Description of Capital Stock" and "Shares Eligible For Future Sale" refer to matters of law or summarize the status of litigation or summarize the provisions of statutes, regulations, contracts, agreements or other documents, such statements have been reviewed by such counsel, are accurate and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent status of any such litigation and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed such provisions purported to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.be summarized;
Appears in 1 contract
Conditions. SECTION 8.1 Conditions The transactions contemplated herein are subject to Each Party's Obligation (i) the performance of due diligence by SBA (including, without limitation, with respect to Effect the Merger. Unless waived operation of the business) for a period from the date hereof through and including the expiration of the second business day following the payment of the Diligence/Consulting Fee to SBA (but no earlier than October 18, 1996), during which period SBA may, in its sole, unfettered and unreviewable discretion, for any reason or for no reason at all, elect not to proceed with the transactions contemplated herein upon the delivery of written notice to Best, (ii) the negotiation and execution of final documentation setting forth definitive and legally binding terms with respect to the transactions contemplated herein and such other terms and conditions as are acceptable to each of SBA and Best, in its sole and absolute discretion, with respect to the transactions described herein, by no later than 17 days following the execution of this agreement, (iii) the entry by the partiesBankruptcy Court of an order in form and substance reasonably acceptable to SBA approving such final documents with respect to the transactions contemplated herein (it being understood and agreed that Best shall use its best efforts to obtain the entry of an order providing, among other things, that the respective obligations transfers and assignments to Newco contemplated herein (including without limitation the transfer and assignment of each party any Option Leases or any Owned Stores) shall, pursuant to effect section 1146(c) of the Merger shall Bankruptcy Code, not be subject to the fulfillment at imposition or prior to the Closing Date payment of the following conditions:
any transfer taxes of any nature); (a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(biv) the shares receipt by Best of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired all consents or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for approvals that purpose shall have been instituted by the SEC Best or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required SBA reasonably deems necessary for the consummation of the Merger transactions contemplated herein; and (v) the condition that Newco shall have been given the opportunity and the right to inspect and copy all of the Option Leases and Personalty Leases at least 20 days prior to the Closing. If, pursuant to (i) of this paragraph 14, SBA elects not to proceed with the transactions contemplated herebyherein, SBA shall nonetheless be entitled to retain the Diligence/Consulting Fee (to the extent that the same has been approved by the Bankruptcy Court), notwithstanding its exercise of its right under (i) of this paragraph 14 to elect not to proceed with the transactions contemplated herein, and all consents from lenders required (a) SBA shall have no obligation or liability of any nature to Best or its estate, other than as provided in this paragraph 14, and (b) Best shall have no obligation or liability of any nature to SBA other than the obligation to pay SBA the Diligence/Consulting Fee to the extent ordered by the Bankruptcy Court. Notwithstanding anything contained herein, none of the conditions set forth in this paragraph 14 shall be a condition to SBA's commitment to consummate the Merger, shall have been obtained and be in effect at Initial Agreement following the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated entry by the Closing Date, addressed to ParentBankruptcy Court of an order, in form and substance reasonably satisfactory acceptable to ParentSBA, stating that approving the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Initial Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within authorizing Best and SBA to consummate the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16same.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote Within one hundred eighty (180) days of the stockholders execution of this Agreement, the Company under applicable law and applicable listing requirements;Respondent shall bring the Facility into compliance with the RIDEM’s UST Regulations to the satisfaction of RIDEM’s Office of Waste Management (“OWM”).
(b) Within ten (10) days of the shares completion of Parent Common Stock issuable the requirements in Section C(4)(a) above, the Respondent shall submit all applicable documents as required in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;RIDEM’s UST Regulations sections 6.00, 7.00, 8.00, 9.00, 10.00 and 11.00.
(c) The Respondent and his agents, servants, employees, successors, assigns and all persons, firms and corporations acting under, through and for the waiting period applicable to Respondent shall not open the consummation Facility without written approval from the RIDEM’s OWM. Written approval from the RIDEM’s OWM will only be granted upon the execution of this Agreement, completion of the Merger under requirements as described in Section C(4)(a) and (b) above and payment of the HSR Act shall have expired or been terminated;penalty as described in Section C(5) below.
(d) If within one hundred eighty (180) days of the Registration Statement shall have become effective execution of this Agreement the Facility is not in accordance compliance with the provisions RIDEM’s UST Regulations to the satisfaction of the Securities ActRIDEM’s OWM, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been following actions must be taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and:
(i) all required material consents and approvals Within thirty (30) days of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at notification by the Effective Time; provided, however, RIDEM that the failure to obtain such consents or approvals shall -------- ------- not Facility must be due permanently closed, submit a permanent closure application to the default or delay RIDEM’s OWM and complete the removal of the party responsible for obtaining such consents USTs in full compliance with Section 13.00 of the RIDEM’s UST Regulations and approvalsSection 13.00 of the RIDEM’s Oil Pollution Control Regulations (the “OPC Regulations”).
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) ParentWithin thirty (30) days of the removal of the USTs, Subsidiary and Company will each be a party submit to the reorganization within the meaning of RIDEM’s OWM a Closure Assessment Report prepared by a qualified environmental consultant, in accordance with Section 368(b) 13.11 of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy StatementRIDEM’s UST Regulations, the effective date of the Registration Statement RIDEM’s UST Closure Assessment Guidelines and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.Section
Appears in 1 contract
Sources: Consent Agreement
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective The obligations of each party the Underwriters of any Securities under the Pricing Agreement relating to effect the Merger such Securities shall be subject subject, in their discretion, to (i) the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company or any subsidiary of the Company delivered pursuant to the fulfillment provisions hereof are, at or prior to and as of the Closing Date true and correct, the condition that the Company shall have performed all of its obligations hereunder and under the Pricing Agreement relating to such Securities to be performed at or before the Closing Date, (ii) the condition that all representations and warranties and other statements of each of AIG and the Selling Stockholder herein or in certificates of any officer of AIG or the Selling Stockholder delivered pursuant to the provisions hereof are, at and as of the Closing Date, true and correct, the condition that each of the AIG and the Selling Stockholder shall have performed all of its obligations hereunder and under the Pricing Agreement relating to such Securities to be performed at or before the Closing Date, and (iii) the following additional conditions:.
(a) this Agreement and the transactions contemplated hereby The Final Prospectus shall have been approved and adopted filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the requisite vote of the stockholders of the Company under applicable law rules and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger regulations under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective and in accordance with the provisions of the Securities Act, and Section 5(a) hereof; no stop order suspending such the effectiveness of the Registration Statement or any part thereof shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted initiated or threatened by the SEC or any state regulatory authoritiesCommission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction;
(e▇) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Underwriters, shall have furnished to the Underwriters such written opinion, dated such Closing Date, with respect to the valid existence and good standing of the Company, in form and substance reasonably satisfactory to the Company, effective as validity of the Securities being delivered on such Closing Date Date, the Registration Statement and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional sharesFinal Prospectus, and such opinion other related matters as the Underwriters may reasonably request, and such counsel shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel Chief Counsel-Public Company and Corporate Law, of the Company, shall have furnished to Parent and Subsidiarythe Underwriters his written opinion, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------hereto as Annex II;
(d) the Company shall have received "comfort" letters in customary form from Coopers ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants counsel for the Company, shall have delivered a letterfurnished to the Underwriters their written opinions, each dated the Closing Date, addressed substantially in the form attached hereto as Annex III-A with respect to certain corporate and tax matters, and Annex III-B with respect to the CompanyRegistration Statement, in form Disclosure Package and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; andFinal Prospectus;
(ie) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for AIG and the Selling Stockholder, shall have furnished to you their written opinion with respect to AIG and the CompanySelling Stockholder, effective for whom they are acting as of counsel, dated the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished hereto as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse EffectAnnex IV;
(f) all governmental waiversThe Company will furnish the Representatives with such conformed copies of such opinions, consentscertificates, orders letters and approvals legally required for documents as the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the MergerRepresentatives reasonably request;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to The Company will furnish the Parent) an opinion reasonably acceptable to Representatives a certificate of the ParentChief Accounting Officer of the Company, dated as of the date on which the Proxy Statement and Prospectus is first distributed Closing Date, relating to the shareholders unaudited pro forma condensed combined financial statements and the related notes thereto, together with the related disclosures included or incorporated by reference in the Disclosure Package and the Final Prospectus, substantially in the form of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawnAnnex V hereto;
(hi) On the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31date hereof, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered furnished to the Representatives a letter, dated the Closing Date, addressed to Parentdate hereof, in form and substance reasonably satisfactory to Parent stating you, confirming that they are independent registered public accountants with respect to the Company and the Company’s subsidiaries within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, and further to the effect set forth in Annex VI hereto, and (ii) on the Closing Date for the applicable Securities, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date of delivery thereof, in form and substance reasonably satisfactory to you, that reaffirms the statements made in the letter furnished pursuant to subclause (i) of this Section 7(h), except that the Merger will qualify specified date referred to shall be a date not more than three business days prior to the Closing Date;
(i) On the date hereof, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter, dated the date hereof, in form and substance reasonably satisfactory to you, confirming that they are independent registered public accountants with respect to American Life Insurance Company, ALICO Services, Inc. and Delaware American Life Insurance Company and their subsidiaries within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, and further to the effect set forth in Annex VII hereto, and (ii) on the Closing Date for the applicable Securities, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter, dated the date of delivery thereof, in form and substance reasonably satisfactory to you, that reaffirms the statements made in the letter furnished pursuant to subclause (i) of this Section 7(i), except that the specified date referred to shall be a date not more than three business days prior to the Closing Date;
(i) Neither the Company nor any Significant Subsidiary shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Disclosure Package any 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 (ii) since the respective dates as of which information is given in the Disclosure Package, there shall not have been any change in the surplus of any Significant Subsidiary or the capital stock of the Company or any increase in the long-term debt of the Company and its subsidiaries considered as a poolingwhole, or any change, or any development involving a prospective change, in or affecting the business, financial position, reserves, surplus, equity or results of operations of the Company and the Significant Subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Disclosure Package, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the applicable Securities on the terms and in the manner contemplated in the Final Prospectus;
(k) After the Applicable Time (i) no downgrading shall have occurred in the rating accorded the debt securities of the Company or any Significant Subsidiary or the financial strength or claims paying ability of the Company or any Significant Subsidiary by A.M. Best & Co., Fitch Ratings, Ltd., ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Ratings Services, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, or shall have given notice of any intended or potential downgrading of, its rating of any debt security or the financial strength or the claims paying ability of the Company or any Significant Subsidiary, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the applicable Securities on the terms and in the manner contemplated in the Final Prospectus;
(l) At or after the Applicable Time, there shall not have occurred any of the following: (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the applicable Securities, whether in the primary market or in respect of dealings in the secondary market; (ii) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (iii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iv) a suspension or material limitation in clearing and/or settlement in securities generally; (v) a general moratorium on commercial banking activities declared by either Federal or New York State authorities; or (vi) the material outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or any other national or international calamity or emergency (including without limitation as a result of an act of terrorism) if the effect of any such event specified in this clause (vi) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering or the delivery of the applicable Securities on the terms and in the manner contemplated in the Final Prospectus;
(m) The Company shall have complied with any request by the Representatives with respect to the furnishing of copies of the Final Prospectus in compliance with the provisions of Section 5(e) hereof;
(n) At the Closing Date, the Representatives shall have received a certificate of the Company, dated as of the Closing Date, to the effect that (i) the representations and warranties of the Company contained in Section 1 hereof are true and correct in all respects with the same force and effect as though expressly made at and as of Closing Date and (ii) the Company has complied in all respects with all agreements and all conditions on its part to be performed under this Agreement at or prior to the Closing Date;
(o) At the Closing Date, the Representatives shall have received a certificate or certificates of AIG and the Selling Stockholder, dated as of the Closing Date, to the effect that (i) the representations and warranties of AIG and the Selling Stockholder contained in Section 2 hereof are true and correct in all respects with the same force and effect as though expressly made at and as of Closing Date and (ii) AIG and the Selling Stockholder have complied in all respects with all agreements and all conditions on their part to be performed under this Agreement at or prior to the Closing Date;
(p) As of the date of the Pricing Agreement, the Representatives shall have received “lock-of-interests transaction up agreements,” substantially in the form of Annex VIII hereto, from the persons listed on Schedule II to the Pricing Agreement;
(q) The Coordination Agreement shall be in full force and effect, and neither the Coordination Agreement nor the Investor Rights Agreement shall have been amended since the execution and delivery of the Coordination Agreement;
(r) All of the closing conditions (except the condition that the offering of the Securities by the Company hereunder has been consummated) under APB 16the Coordination Agreement shall have been satisfied or waived, and the Representatives shall have received a certificate to that effect from the Company, AIG and the Selling Stockholder; and
(s) As of the Closing Date, the security interest in the Securities under the AIG Pledge Agreement shall have been released, discharged and terminated in accordance with the terms of the AIG Pledge Agreement, and the Securities shall be free and clear of all liens, encumbrances, security interests, equities, charges or claims as of such time. The Company will not be obligated to deliver the Securities hereunder unless all of the closing conditions (except the condition that the offering of the Securities by the Company hereunder has been consummated) under the Coordination Agreement shall have been satisfied or waived. The Selling Stockholder will not be obligated to deliver the Securities hereunder unless the Coordination Agreement shall be in full force and effect.
Appears in 1 contract
Sources: Underwriting Agreement (Metlife Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect The consummation of the Merger. Unless waived sale and purchase contemplated by the parties, the respective obligations of each party to effect the Merger shall this Agreement will be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the a. The representations and warranties of Parent and Subsidiary contained by Seller set forth in this Agreement Section 7 shall be true and correct in all material respects on as of the date when made and as of the date made and on and as Closing.
b. There shall have been no material adverse change in the condition of the Closing Date as if made at Properties except depletion through normal production within authorized allowables and as rates of such dateproduction, depreciation of equipment through ordinary wear and tear, and other transactions permitted under this Agreement or approved in writing by Buyer between the Company date of this Agreement and Closing.
c. All requirements made by Buyer with regard to title to the Properties shall have received been fully satisfied or waived by Buyer. All consents, approvals and authorizations of assignments, and waivers of preferential rights to purchase required by Buyer shall have been submitted to and approved by Buyer.
d. Seller and Buyer understand and agree that if: (1) title to the Properties is not satisfactory to Buyer; (2) Seller's actual interests in the Properties is different than as represented by Seller and the difference causes a certificate diminution in Seller's net revenue interest which Seller represents to own; (3) contracts, claims or litigation to which Buyer takes exception are material; or, (4) Seller fails to comply with any of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form conditions set forth in this Agreement; Buyer may, at its option, either terminate this Agreement at any time on or before Closing, or reduce the Purchase Price by an amount agreeable to both parties. However, any reduction in Seller's net revenue interests below that which is represented in Exhibit 8.2(c) attached hereto; --------------"A" shall result in an automatic reduction in the Purchase Price commensurate with the reduction in such net revenue interest.
(d) the Company e. The parties shall have received "comfort" letters performed or complied with all agreements and covenants required by this Agreement of which performance or compliance is required prior to or at Closing.
f. All legal matters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent connection with and Subsidiary, dated the date consummation of the Proxy Statement, the effective date of the Registration Statement transactions contemplated by this Agreement shall be approved by counsel for Buyer and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes furnished by Seller such records and information as Buyer's counsel may reasonably request for that havepurpose.
g. Notwithstanding anything to the contrary in this Agreement, and no event or events at Buyer's option, Buyer shall have occurred which the unilateral right to terminate this Agreement if Buyer determines it does not have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, the rights to obtain and approvals legally required for maintain the consummation rights to be Operator of the Merger and the transactions contemplated hereby shall have been obtained and be in effect Properties pursuant to existing Operating Agreements at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇Closing. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger Operations shall be subject transferred from Seller to Buyer at Closing via the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or execution of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16mutually agreeable Joint Operating Agreement.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) this This Consideration Agreement entitles each Member who signs it to receive Consideration to the extent, and in the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;manner, provided herein.
(b) the shares No Member may receive Consideration including securities of Parent Common Stock issuable WEB unless such Member also executes and delivers that certain Registration Rights Agreement contemplated in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;Agreement within thirty (30) days after the Agreement Date.
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) If any Member does not execute and deliver this Consideration Agreement and the Registration Statement shall have become effective in accordance with Rights Agreement within thirty (30) days after the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Agreement Date, addressed such Member may not receive any Consideration under this Consideration Agreement unless such Member signs an allonge to Parentthis Consideration Agreement, in form and substance reasonably satisfactory acceptable to ParentWEB, stating providing that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) such Member agrees to perform all of the obligations required material consents of Members under this Consideration Agreement, (ii) such Member agrees to all of the terms and approvals conditions of lenders who this Consideration Agreement, (iii) such Member acknowledges that any securities issued by WEB included in the Consideration will be unregistered and that Member will have advanced $5,000,000 no right to register such securities, (iv) such Member agrees to reimburse WEB for its reasonable fees and expenses in preparing the allonge, and (v) such Member agrees to release and hold harmless WEB, Merger Sub and the other Members in respect of all prior acts and omissions taken or more to Parent or the Company and lessors omitted by any of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due them prior to the default or delay date of such allonge.
(d) With respect to any Member who does not execute and deliver this Consideration Agreement and the Registration Rights Agreement within thirty (30) days after the Agreement Date, WEB will hold any disbursements of Consideration to which such Member would be entitled (if such Member satisfied the conditions set forth in Section 1(c) above) in a separate account for a period of two (2) years with such Consideration to be disbursed to such Member if and when such Member satisfies the conditions in Section 1(c).
(e) By signing this Consideration Agreement, each Member hereby releases and covenants not to sue Company (including its successors-in-intere▇▇) and each other Member who signs this Consideration Agreement, in respect of any dispute, claim, breach of contract, tort, alleged violation of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions Regulations or any other cause of action pertaining in any way to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations actions of the Company and Parent, the Company's Managers taken prior to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;.
(f) all governmental waiversBy signing this Consideration Agreement, consents, orders, each Member reaffirms the appointment of Marc Smith as the Member Representative and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from expressly ac▇▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed those terms applicable to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger Member Representative as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(bSection 7(f) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Agreement.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect 2.1. The provisions of this Agreement shall be conditional and only become effective upon the Mergercompletion of the following:
2.1.1. Unless waived by the partiespassing of the Demerger Resolution;
2.1.2. the Elan Board shall have duly approved this Agreement, the respective obligations disposal of each party the Transfer Shares to effect Prothena, and all the Merger other transactions contemplated thereby;
2.1.3. the Prothena Board shall be subject have duly approved this Agreement, the allotment of the Demerger Shares to the fulfillment at or Qualifying Elan Shareholders, and all the other transactions contemplated thereby;
2.1.4. Elan and its subsidiaries shall have completed the Pre-Demerger Restructuring;
2.1.5. each of the Transaction Agreements shall have been executed by each Party thereto;
2.1.6. NASDAQ having acknowledged (and such acknowledgement not having been withdrawn) that the Demerger Shares will be approved for listing on the Nasdaq Global Market;
2.1.7. prior to the Closing Date Demerger, all of Elan’s Representatives shall have resigned or been removed as officers and from all boards of directors or similar governing bodies of the following conditions:Prothena Group Companies, and all of Prothena’s Representatives shall have resigned or been removed from all such bodies of the Elan Group Companies;
(a) this Agreement 2.1.8. Elan and Prothena shall have received all permits, registrations and consents required under the transactions contemplated hereby securities or the “blue sky” laws of states or other political subdivisions of the United States or of foreign jurisdictions;
2.1.9. the Form 10 shall have been approved and adopted declared effective by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities ActSEC, and no stop order suspending such the effectiveness of the Form 10 shall have been issued and remain be in effect and no proceeding for that purpose shall have been instituted by or, to the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the MergerParties’ knowledge, shall have been obtained threatened by the SEC, and the Information Statement shall have been distributed or mailed (as appropriate) to the Qualifying Elan Shareholders;
2.1.10. Elan and Prothena shall have received all Governmental Approvals and all Third Party Consents necessary to effect the Demerger and to permit the operation of the Prothena Business after Completion;
2.1.11. no Applicable Law, Judgment or legal restraint shall be in effect at that prohibits Completion or any of the Effective Timeother transactions contemplated by the Transaction Agreements;
(h) Coopers & 2.1.12. substantially all of the Outstanding Agreements that are material to the Prothena Business have been assigned or novated, as the case may be, as required pursuant to clause 10.1;
2.1.13. substantially all of the Group Contracts that are material to the Prothena Business have been partially assigned to Prothena or have been terminated and replaced by separate agreements; and
2.1.14. no other events or developments shall have occurred or shall exist that, in the judgment of the Elan Board, in its sole and absolute discretion, would make it inadvisable to effect the Demerger.
2.2. The foregoing Conditions may be waived only by the Elan Board, in its sole and absolute discretion, and they are for the sole benefit of Elan and shall not give rise to or create any duty on the part of the Elan Board to waive or not to waive such Conditions or in any way limit the right of termination of this Agreement set forth in clause 27.9 or alter the consequences of any such termination as specified in clause 27.9. Any determination made by the Elan Board prior to Completion concerning the satisfaction or waiver of any or all of the Conditions set forth in clause 2.1 shall be conclusive; PROVIDED THAT Elan shall not waive;
2.2.1. the Condition in clause 2.1.5 that the Subscription and Registration Rights Agreement shall have been executed by ▇▇▇▇, ▇▇▇ L.L.P.and Prothena;
2.2.2. the Conditions in clauses 2.1.12 and 2.1.13; or
2.2.3. any Condition that is mandatory under Applicable Law.
2.3. Subject to clause 2.4, certified public accountants for Parent, the Parties shall have delivered a letter, dated the Closing Date, addressed use all reasonable endeavours to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay ensure fulfilment of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless Conditions, unless waived by the CompanyElan Board. If the Conditions are not satisfied by 1 July 2013, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable as the Parties may agree), this Agreement shall automatically terminate and neither Party shall have any claim of any nature whatsoever against the other under this Agreement (save in respect of any rights and Liabilities of the Parties which have accrued prior to termination).
2.4. Each Party undertakes to the Company) with respect other to certain financial statements disclose anything which will or may prevent any of the Conditions from being satisfied immediately after it comes to the notice of that Party.
2.5. Elan will procure that, between the time of this Agreement and other financial information included Completion, the Prothena Business will be carried on in the Registration Statement and ordinary course subject only to:
2.5.1. implementation of any subsequent changes remaining steps to be undertaken to facilitate giving effect to the Demerger, this Agreement or the Step Plan, or any further steps required to be taken in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and consequence of taking such remaining steps; or
2.5.2. actions undertaken in the total and per share amounts course of net income related to Parent;
(e) since implementing the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted operational separation of the Prothena Business from the Elan Business in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required preparation for the consummation Demerger; or
2.5.3. any matter undertaken as a requirement of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Dateany Applicable Law or as a requirement of any Contract, and no governmental authority shall have promulgated any statute, rule arrangement or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed commitment relating to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company Prothena Business in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or place prior to the Effective Time date of this Agreement; or
2.5.4. immediate or prompt steps undertaken to the extent required to prevent (so far as possible) or remedy or limit the consequences of any matter having a material and adverse effect on the ongoing operations of the additional following conditions:
Prothena Business (a) the Company which Elan shall have performed in all material respects its agreements contained in this Agreement required to be performed on or promptly notify Prothena of, if reasonably practicable, prior to the Closing Date taking such steps (and the representations if not, as soon as reasonably practicable thereafter) and warranties of the Company contained shall consult with and give reasonable consideration to any reasonable corrective or remedial action proposed by Prothena in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as respect of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16matter).
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective 5.1 The obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required Purchaser pursuant to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; andclause 4 are conditional upon:
(i) all required material consents conditions to the Scheme having been satisfied or, where permissible waived, save any condition thereto relating to Escrow Completion and/or Completion;
(ii) the Prospectus having been lodged with the Registrar of Companies in England and approvals Wales in accordance with the POS Regs and posted to ITG Shareholders, Warrantholders and, if required, participants in the Iguana Share Option Schemes together with the Scheme Document by no later than the Longstop Date; and
(iii) none of lenders who have advanced $5,000,000 the Non-ISP Interests being subject to any encumbrance or more restrictions on transfer.
5.2 Each of the parties agrees to Parent or use its best endeavours to procure (and the Nominated Directors and the Trustee shall use their respective best endeavours to procure that the Company and lessors the Purchaser use their best endeavours to procure) that Condition (ii) is fulfilled as soon as practicable after the date hereof and in any case by no later than the Longstop Date and that Condition (iii) is fulfilled as soon as practicable after the date hereof and in any case prior to the Escrow Completion Date.
5.3 Condition (iii) may be waived by agreement between the Company and the Offeror.
5.4 Each of material leases shall have been obtained the parties agrees that it will not, and be in effect at the Effective Time; provided, however, Nominated Directors and the Trustee agree that they will use their respective best endeavours to procure that the failure Purchaser and the Company will not, take or permit to obtain such consents be taken any action which is reasonably likely to impede or approvals shall -------- ------- not be due to prevent the default or delay satisfaction of any of the party responsible for obtaining such consents and approvalsConditions.
SECTION 8.2 5.5 To the extent that any of the Conditions have not been satisfied or, where permissible, waived by the dates referred to Obligation in clause 5.2, the rights and obligations of the Company and the Purchaser under this agreement insofar as they relate exclusively to Effect the Merger. Unless waived by sale and purchase of the CompanyNon-ISP Interests and the making of the Red Wave Offer shall terminate (with the effect, inter alia, that neither Escrow Completion nor Completion will take place) but without prejudice to accrued rights and liabilities.
5.6 Where for any reason the obligation rights and obligations of the Company and the Purchaser under this agreement with respect to the sale and purchase of the Non-ISP Interests are terminated, the Offeror may elect (in its absolute discretion) by serving notice in writing on the Company and the Purchaser: (i) not to proceed with the Offer in which case the Company shall not seek the sanction of the Court to the Scheme and this agreement, save for clauses 16,17, 20, 24 and 25 shall terminate but without prejudice to accrued rights and liabilities; or (ii) to proceed with the Offer, in which case the Company shall proceed to seek the sanction of the Court to the Scheme in accordance with clause 3.
5.7 Without prejudice to any other terms of this agreement, the obligations of the Company and the Offeror to effect the Merger shall Scheme will be subject to the fulfillment at or prior conditions and other terms set out in Appendix I to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Press Announcement.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions (a) The satisfaction or waiver by the ---------- Underwriters of all conditions precedent to Each Party's Obligation the closing of the purchase and sale of the Firm Shares under the Underwriting Agreement shall be conditions precedent to Effect the Mergerobligation of FBR to purchase and pay for the Shares hereunder. Unless The following shall also be conditions precedent to the obligation of FBR to purchase and pay for the Shares:
(i) The representations and warranties made by the Company in Section 4 below shall be true and correct as of the Closing Date, provided that this clause (i) shall not apply to the extent that any truth or accuracy of a representation and warranty in Section 4 below is also a condition precedent to the obligations of the Underwriters under the Underwriting Agreement and such condition precedent has been waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:Underwriters.
(aii) this Agreement The Company and each other party indicated in the signature blocks thereto shall have executed and delivered a Third Amended and Restated Registration Rights Agreement, substantially in the form set forth in Annex A hereto (the "Registration Rights Agreement"), and the transactions contemplated hereby Shares shall constitute "Registrable Securities" as defined in the Registration Rights Agreement.
(iii) FBR shall have been approved received legal opinions of Fried, Frank, Harris, Shriver and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
Jacobson (b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act"FFHSJ"), and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
Sutherland A▇▇▇▇▇ & Bren▇▇▇ ▇▇▇ (e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction"SAB"), order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & special ▇▇▇▇▇▇▇ L.L.P.▇▇ ▇▇▇ ▇omp▇▇▇, certified public accountants for Parent▇▇ each case in form and substance reasonably satisfactory to FBR, to the effect set forth in clauses (ii), (iii) and (iv) of Section 4(a) below (it being understood that the opinion of SAB shall have delivered a letterbe limited to certain matters arising under the Investment Company Act of 1940 and that the opinion of FFHSJ need not express an opinion with respect to such matters, dated in each case to an extent consistent with the respective opinions of such counsel contemplated to be provided to the Underwriters pursuant to the Underwriting Agreement).
(b) The following shall be conditions precedent to the obligation of the Company to issue and sell the Shares to FBR:
(i) the representations and warranties made by FBR in Section 4(b) below shall be true and correct as of the Closing Date.
(ii) FBR shall have executed and delivered a "lock-up" agreement relating to the Shares substantially in the form set forth in Annex B hereto.
(iii) FFHSJ shall have received a legal opinion of counsel of Friedman, addressed to ParentBillings, Ramsey & Co., Inc. (or such other counsel as FFH▇▇ ▇▇▇ approve), in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and ParentFFHSJ , to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as FBR is a reorganization "qualified institutional buyer" within the meaning of Section 368(a) of Rule 144A under the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996Securities Act, together with an unqualified permission for FFHSJ to rely on such opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average for purposes of delivery of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(iopinion contemplated by Section 3(a)(iii) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16above.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions3.1 Completion is conditional upon:
(a) this Agreement the Purchaser having completed its due diligence (including without limitation, legal, financial and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders commercial aspects) in respect of the Company under applicable law referred to in Clause 3.3 below and applicable listing requirementsthe results of which are, in the absolute opinion of the Purchaser, satisfactory and acceptable to the Purchaser in all respects;
(b) the shares of Parent Common Stock issuable Vendor having obtained all necessary consents and approvals for the transactions contemplated under this Agreement (if required) from the relevant governmental or regulatory authorities in Hong Kong or Australia or Nasdaq or elsewhere under the Merger shall have been authorized for listing on Nasdaq upon official notice of issuancerelevant applicable laws and regulations;
(c) the waiting period applicable to Purchaser having obtained all necessary consents and approvals for the consummation of transactions contemplated under this Agreement (if required) from the Merger relevant governmental or regulatory authorities in Hong Kong or elsewhere under the HSR Act shall have expired or been terminated;relevant applicable laws and regulations; and
(d) the Registration Statement shall have become effective in accordance with the provisions there being no breach of any of the Securities Act, Warranties.
3.2 The Vendor shall fulfill the condition precedents mentioned in Clauses 3.1(b) above and no stop order suspending such effectiveness shall have been issued keep the Purchaser fully informed of all his actions and remain efforts in effect and no proceeding for that purpose shall have been instituted by connection with obtaining the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material necessary consents and approvals from the relevant regulatory authorities pursuant to Clause 3.1(b).
3.3 In relation to Clause 3.1(a), the Vendor shall give and shall procure that the Purchaser and/or any persons authorised by it in writing will be given such access to the premises and all books, documents, title deeds, records, returns, approvals, correspondence and accounts of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors all such information relating to the Company as may be reasonably requested by or on behalf of material leases shall have been obtained the Purchaser to undertake and conduct a full due diligence (including but without limitation, in all legal, financial and commercial aspects) against the Company and be in effect at the Effective Time; providedpermitted to take copies of any such books, howeverdocuments, title deeds, records and accounts and that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay directors and employees of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation all members of the Company shall be instructed to Effect give promptly all such information and explanations to any such persons as aforesaid as may be requested by it or them. For the Mergeravoidance of doubt, such due diligence shall not limit or otherwise qualify in any way the obligations and liabilities of the Vendor under Clause 6.
3.4 The Purchaser may at any time by notice in writing to the Vendor waive any of the conditions set out in Clause 3.1. Unless If (a) any of the conditions set out in Clause 3.1 has not been satisfied (or as the case may be, waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(aPurchaser) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to before the Closing Completion Date and or such later date as the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President Purchaser may agree; or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to Purchaser is not satisfied with the Company, in form and substance reasonably satisfactory to the Company, effective as results of the Closing Date due diligence conducted according to Clause 3.3 and based on representations of informs the Company Vendor in writing at any time, this Agreement shall cease and Parent, determine and the parties to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger this Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent obligations and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants liabilities hereunder save for Parent and Subsidiary, dated the date any antecedent breaches of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date terms hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Integrated Media Technology LTD)
Conditions. SECTION 8.1 Conditions The obligations of the Underwriters hereunder shall be subject, in their discretion, to Each Party's Obligation to Effect the Merger. Unless waived by condition that all representations and warranties and other statements of Brazil herein are, at and as of the partiesTime of Delivery, true and correct, the respective condition that Brazil shall have performed all of its obligations of each party hereunder theretofore to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of performed in all material respects, and the following additional conditions:
(a) this Agreement and the transactions contemplated hereby The Prospectus shall have been approved and adopted filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the requisite vote of the stockholders of the Company under applicable law rules and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger regulations under the HSR Act shall have expired or been terminated;
(dand in accordance with Section 5(a) hereof; if Brazil has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective in accordance by 10:00 p.m., Washington D.C. time, on the date of this Agreement; any final term sheet contemplated by Section 5(a) hereof, and any other material required to be filed by Brazil pursuant to Rule 433(d) under the Act shall have been filed with the provisions of Commission within the Securities Act, and applicable time periods prescribed for such filings by Rule 433; no stop order suspending such the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted initiated or threatened by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents Commission; and all requests for additional information on the consummation part of the Merger Commission shall have been issued and remain in effect (each party agreeing complied with to use its your reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effectsatisfaction;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special United States counsel for the Underwriters, shall have furnished to you such written opinion or opinions dated the Time of Delivery, with respect to the Company, in form and substance reasonably satisfactory to the Company, effective as validity of the Closing Date Indenture, the Securities, the Registration Statement, the Prospectus and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes such other related matters as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional sharesyou may reasonably request, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company counsel shall have received an opinion or opinions from such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering such opinion, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel LLP may assume all matters of Brazilian law covered by the opinions referred to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------Section 8(c);
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇▇ LynchNeto Advogados, Piercespecial Brazilian counsel for the Underwriters, ▇▇▇▇▇▇ & ▇▇▇▇▇shall have furnished to you such written opinion or opinions dated the Time of Delivery, Inc. (or other nationally recognized investment banking firm reasonably acceptable with respect to the Parentvalidity of this Agreement, the Indenture, the Securities, the Registration Statement, the Prospectus and such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; in rendering such opinion, such counsel may assume all matters of United States federal and New York law covered by the opinions referred to in Section 8(b);
(d) an opinion reasonably acceptable to the Parent, dated as The Attorney General of the date on which National Treasury or another duly authorized attorney of the Proxy Statement Office of the Attorney General of the National Treasury of the Ministry of Finance, shall have furnished to you a written opinion dated the Time of Delivery, in form and Prospectus is first distributed substance satisfactory to the shareholders of Parentyou, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; andthat:
(i) Coopers & This Agreement has been duly authorized, executed and delivered by Brazil and constitutes a valid and legally binding agreement of Brazil;
(ii) The Securities have been duly authorized, executed, issued and delivered by Brazil, and assuming due authentication by the Trustee, constitute valid and legally binding obligations of Brazil enforceable in accordance with their terms and entitled to the benefits provided by the Indenture, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iii) The Indenture has been duly authorized, executed and delivered by Brazil and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of Brazil enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) Neither the execution and delivery of this Agreement, the Indenture or the Securities, nor the consummation of the transactions herein or therein contemplated, nor compliance with the terms and provisions hereof or thereof, including performance of each of the obligations contained in the Securities, (A) to such counsel’s best knowledge after due inquiry, will conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, loan agreement or other agreement or instrument for borrowed money known to such counsel to which Brazil is a party, (B) will conflict with, violate or result in a breach of the Constitution of Brazil as amended to the date hereof or as currently proposed to be amended by any currently pending resolution of the Brazilian National Congress (i.e., a resolution that initially has been voted upon and approved by both houses of Congress), or any statutes, laws, decrees or regulations of Brazil, (C) to such counsel’s best knowledge after due inquiry, will conflict with or result in a breach of any of the terms, conditions or provisions of any treaty, convention or agreement to which Brazil is a party or constitute a default thereunder or (D) will result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the revenues or assets of Brazil under any such treaty, convention or agreement which, in the case of clause (A), (B), (C), or (D), could have a material adverse effect on the financial, economic or fiscal condition of Brazil or affect the validity or enforceability of the Securities;
(v) The Registration Statement, the Basic Prospectus, the Pricing Disclosure Package and the Prospectus and their filing with the Commission have been duly authorized by and on behalf of Brazil, and the Registration Statement has been duly executed by and on behalf of Brazil; His Excellency Luiz ▇▇▇▇▇▇▇ L.L.P.▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ has been duly appointed as the Authorized Representative of Brazil in connection with the Registration Statement; the information in the Registration Statement, the Basic Prospectus, the Pricing Disclosure Package and the Prospectus stated on the authority of public accountants officials of Brazil has been stated in their official capacities duly authorized by Brazil; statements with respect to matters of Brazilian law set forth in the Registration Statement and in the Basic Prospectus under the caption “Arbitration and Enforceability” are true and correct in all material respects;
(vi) All Brazilian Government Authorizations (which shall be specified in such opinion) of or with any Brazilian Government Agency required by Brazil for Parent the execution and Subsidiarydelivery of this Agreement and the Indenture and for the execution, issuance, sale and delivery of the Securities, and the consummation by Brazil of the transactions contemplated by this Agreement, the Indenture or the Securities have been obtained and are in full force and effect;
(vii) Under the laws of Brazil, neither Brazil nor any of its property has any immunity from the jurisdiction of any Brazilian court or from the execution of any judgment in Brazil (except for the limitation on alienation of public property under Article 100 of the Civil Code of Brazil) or from enforcement therein of any arbitral award on the grounds of sovereignty or otherwise; the execution of an arbitral award, as well as the execution of any judgment, against Brazil in Brazil are only available in accordance with the procedures set forth in Article 910 et seq. of the Civil Procedure Code of Brazil of March 16, 2015;
(A) The agreement of the parties to this Agreement, the Indenture and the Securities that these agreements shall have delivered a letterbe governed by, dated the Closing Date, addressed to Parent, and construed in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.accordance
Appears in 1 contract
Sources: Underwriting Agreement (Federative Republic of Brazil)
Conditions. SECTION 8.1 Conditions (a) The obligation of the Initial Purchasers to Each Party's Obligation to Effect purchase the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be Units under this Agreement is subject to the fulfillment at satisfaction or prior to the Closing Date waiver of each of the following conditions:
(aA) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and All the representations and warranties of Parent the Issuer and Subsidiary contained the Guarantors in this Agreement shall be true and correct in all material respects on (other than representations and warranties with a Material Adverse Effect qualifier or other materiality qualifier, which shall be true and correct as of the date made and on written) at and as of the Closing Date after giving effect to the Transactions with the same force and effect as if made at on and as of such date. On or prior to the Closing Date, each of the Issuer and the Subsidiaries and, to the knowledge of each of the Issuer and the Subsidiaries, each other party to the Operative Documents (other than the Initial Purchasers) shall have performed or complied in all material respects with all of the agreements and satisfied in all material respects all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Operative Documents.
(B) The Preliminary Offering Circular as of its date did not, and the Company Offering Circular, as of its date did not and as of the Closing Date does not, and each supplement or amendment thereto as of its date did not, contain any untrue statement of a material fact or omit to state any material fact (except, in the case of the Preliminary Offering Circular, for pricing terms, other financial terms intentionally left blank and other changes in the structure of the transaction described in the Preliminary Offering Circular which arose after the date of the Preliminary Offering Circular) necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing shall not apply to any statements or omissions made in reliance on and in conformity with the Furnished Information.
(ii) The Offering Circular shall have been printed and copies made available to the Initial Purchasers not later than 12:00 noon, New York City time, on the first Business Day following the date of this Agreement or at such later date and time as the Initial Purchasers may approve.
(iii) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or interfere with the consummation of any of the Transactions; and no stop order suspending the qualification or exemption from qualification of any of the Securities in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or be pending or contemplated as of the Closing Date.
(iv) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of any of the Transactions. No Proceeding shall be pending or threatened other than Proceedings that (A) if adversely determined could not, singly or in the aggregate, adversely affect the issuance or marketability of the Securities and (B) could not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(v) Since the date as of which information is given in the Offering Circular, there shall not have been any Material Adverse Change.
(vi) The Units, the Notes and the Warrants shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market, and the Notes shall have received a certificate rating of B and B3 from Standard & Poor's Corporation and ▇▇▇▇▇'▇ Investors Services, Inc., respectively.
(vii) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the Chairman possible change in, any rating of the Board Issuer or any securities of the Issuer (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any adverse change, nor shall any notice have been given of any potential or intended adverse change, in the outlook for any rating of the Issuer or any securities of the Issuer by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to any of the Notes than that on which the Notes were marketed.
(viii) The Initial Purchasers shall have received on the Closing Date (A) a certificate dated the Closing Date, signed by (1) the Chief Executive Officer, and (2) the President principal financial or a Vice President of Parent and accounting officer of the President Issuer and Chief Executive Officer each of the Guarantors, on behalf of the Issuer and each of the Guarantors, and not as an individual, (x) confirming the matters set forth in paragraphs (i), (iii), (iv), (v), (vii) and (xiii) of this Section 9(a), (B) a certificate, dated the Closing Date, signed by the Secretary of the Issuer and the Guarantors, on behalf of the Issuer and the Guarantors, and not as an individual, certifying such matters as the Initial Purchasers may reasonably request, and (C) a certificate of solvency, dated the Closing Date, signed by the principal financial or a Vice President accounting officer of Subsidiary to that effect;the Issuer and the Guarantors substantially in the form previously approved by the Initial Purchasers.
(bix) the Company The Initial Purchasers shall have received received:
(1) an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special LLP, counsel to Parent and Subsidiarythe Issuer, dated the Closing Date, reasonably satisfactory to the Company in substantially in the form set forth in of Exhibit 8.2(cA hereto, and (2) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts legal opinions of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company▇▇▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinionLLP, dated as of the date on which the Proxy Statement and Prospectus is first distributed counsel to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letterIssuer, dated the Closing Date, addressed as the Initial Purchasers or their counsel may reasonably request, related to the Companyenforceability of the Security Documents and the creation, in form validity and substance reasonably satisfactory perfection of the liens granted under the Security Documents (including, without limitation, as to the Companyauthorization by the Grantors of the filing of financing statements, stating that the Company has not taken any action that would affect financing statements being in appropriate form for filing and each Grantor being a registered organization under the ability to account for the Merger as a pooling-of-interests transaction under APB 16; andapplicable Uniform Commercial Code);
(i1) The parent shall have entered into an employment agreement with opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., general counsel to the Issuer, dated the Closing Date, in the form of Exhibit B hereto, and (2) such other legal opinions of ▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇", Esq., general counsel to the Issuer, dated the Closing Date, as the Initial Purchasers or their counsel may reasonably request, related to the enforceability of the Security Documents and the creation, validity and perfection of the liens granted under the Security Documents (including, without limitation, as to the authorization by the Grantors of the filing of financing statements, the financing statements being in appropriate form for filing and each Grantor being a registered organization under the applicable Uniform Commercial Code);
(C) such other legal opinions of local counsel to the Issuer, dated the Closing Date, as the Initial Purchasers or their counsel may reasonably request, related to the enforceability of the Security Documents and the creation, validity and perfection of the liens granted under the Security Documents (including, without limitation, as to the authorization by the Grantors of the filing of financing statements, the financing statements being in appropriate form for filing and each Grantor being a registered organization under the applicable Uniform Commercial Code); and
(D) an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in form and substance reasonably satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(x) The Initial Purchasers shall have received:
(A) with respect to fiscal years 1996 through 1999, from Deloitte & Touche LLP, independent public accountants with respect to the Issuer and the Subsidiaries for fiscal years 1996 through 1999, (1) a customary comfort letter, dated the date of the Offering Circular, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to the financial statements and the financial information contained in the Offering Circular as of and for such fiscal years and any periods therein, and (2) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that Deloitte & Touche LLP reaffirms the statements made by it in the letter furnished pursuant to clause (1) of this paragraph (A), except that the specified date referred to shall be a date not more than five days prior to the Closing Date, and
(B) with respect to fiscal years 2000 and 2001, from ▇▇▇▇▇▇▇▇ LLP, independent public accountants with respect to the Issuer and the Subsidiaries for fiscal years 2000 and 2001, (1) a customary comfort letter, dated the date of the Offering Circular, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to the financial statements and the financial information contained in the Offering Circular as of and for such fiscal years and any periods therein, and (2) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that ▇▇▇▇▇▇▇▇ LLP reaffirms the statements made by it in the letter furnished pursuant to clause (1) of this paragraph (B), except that the specified date referred to shall be a date not more than five days prior to the Closing Date.
(xi) The Operative Documents shall have been executed and delivered by all parties thereto and the Initial Purchasers shall have received a fully executed original of each Operative Document relating to the Offering.
(xii) The Initial Purchasers shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Transactions.
(xiii) Each of the Transactions shall have been consummated on terms that conform to the description thereof in the Offering Circular. The terms of each Operative Document shall conform in all material respects to the description thereof in the Offering Circular.
(xiv) The Initial Purchasers shall have received copies of duly executed payoff letters, UCC-3 termination statements, mortgage releases, intellectual property releases and other collateral releases and terminations, each in form and substance satisfactory to the Initial Purchasers evidencing, as the case may be, (A) the repayment of all outstanding borrowings under the Existing Credit Facility; (B) the termination of the Existing Credit Facility and of each other agreement and instrument relating to such borrowings and any other Indebtedness secured by the Collateral; and (C) the release of each item of Collateral securing such Indebtedness and the termination of all Liens created thereunder, and each such payoff letter, release and termination shall be in full force and effect.
(xv) The Collateral Agent shall have received (A) executed copies of each UCC-1 financing statement signed by the Issuer and each Grantor, naming the Collateral Agent as a secured party and filed in such jurisdictions as the Initial Purchasers may reasonably require; (B) bailee letters and landlord waivers, in form and substance reasonably satisfactory to the Initial Purchasers, executed by the Issuer or the appropriate Grantors for delivery to each of the Persons specified in the Security Documents as holding Collateral; and (C) any other documents required to be delivered to the Collateral Agent pursuant to the Security Documents.
(xvi) Counsel to the Initial Purchasers shall have been furnished with such documents as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Section 9 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(xvii) The Issuer shall have furnished to the Initial Purchasers the Security Documents duly executed by the respective Grantors party thereto, together with:
(A) proper financing statements, each in the form to be filed on the Closing Date under the Uniform Commercial Code of all jurisdictions that may be deemed necessary or desirable in order to perfect the liens created by the Security Documents, covering the Collateral and naming the Collateral Agent as secured party, which financing statements shall be so filed on the Closing Date;
(B) proper instruments to be filed in the U.S. Patent and Trademark Office that may be deemed necessary or desirable in order to perfect the liens granted on patents and trademarks which liens have been created by the Security Documents;
(C) contemplated requests for information and lien search results, listing all effective financing statements filed as of a recent date in the jurisdictions referred to in the prior subparagraph that name the Issuer or the Guarantors as debtor, together with copies of such financing statements (none of which is attached hereto as Exhibit ------- 8.2(i). ------shall cover the Collateral described in the Security Documents; and
SECTION 8.3 Conditions (D) reasonable evidence that all other actions necessary to Obligations of Parent perfect and Subsidiary to Effect protect the Merger. Unless waived Liens created by Parent and Subsidiary, the Security Documents have been taken.
(b) The obligations of Parent the Issuer and Subsidiary the Guarantors to effect sell the Merger shall be Securities under this Agreement is subject to the fulfillment at satisfaction or prior to the Effective Time waiver of each of the additional following conditions:
(ai) the Company The Initial Purchasers shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior delivered payment to the Closing Date Issuer for the Units pursuant to Sections 2 and 4 of this Agreement.
(ii) All of the representations and warranties of the Company contained Initial Purchasers in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in with the form set forth in Exhibit 8.3(b) attached hereto; --------------same force and effect as if made on and as of such date.
(ciii) Parent No injunction, restraining order or order of any nature by a Governmental Authority shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date been issued as of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (that would prevent or such other date reasonably acceptable to Parent) interfere with respect to certain financial statements the issuance and other financial information included sale of the Securities; and no stop order suspending the qualification or exemption from qualification of any of the Securities in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 jurisdiction shall have been furnished as required by Section 7.4;
(e) since the date hereof, there issued and no Proceeding for that purpose shall have been no changes that have, and no event commenced or events shall have occurred which have resulted in be pending or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation contemplated as of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect As of the Merger. Unless waived time of the purchase of the Securities by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditionsPurchasers:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote each of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent set forth in Section 6 hereof and Subsidiary contained in this Agreement the other Operative Documents shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such time, except to the extent the same relate expressly to an earlier date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, be in form and substance reasonably satisfactory to the Company, effective as compliance with all of the Closing Date terms and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional sharesconditions hereof, and such opinion no Default or Event of Default shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------occurred and be continuing hereunder;
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory simultaneously sold to the Company substantially in Purchasers the form set forth in Exhibit 8.2(c) attached hereto; --------------Securities to be purchased by the Purchasers hereunder at the Closing;
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent made all filings under all applicable federal and Subsidiary, dated state securities laws necessary to consummate the date issuance of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or Securities pursuant to this Agreement in compliance with such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parentlaws;
(e) the purchase and sale of the Securities shall not violate any order, judgment or decree of any court or other authority or any provision of law or regulation applicable to the Agent or any Purchaser (including, without limitation, Regulation U of the Board of Governors of the Federal Reserve System, the Securities Act and the Securities Exchange Act) as then in effect;
(f) the Company, the Senior Bank Agent and the Senior Lenders shall have entered into the Senior Credit Agreement and all conditions to its effectiveness shall have been satisfied and no default or event of default shall have occurred and be continuing thereunder prior to and after giving effect to this Agreement and the transactions contemplated hereby;
(g) the Purchasers shall have received approval from each of their respective investment committees to purchase the Securities and enter into this Agreement;
(h) since the date hereofDecember 31, 2003 there shall have been no changes that havechange in the financial condition, and no event operating results, assets, operations, business prospects, results, assets, operations, business prospects, employee relations or events shall customer or supplier relations of the Company or any of its Subsidiaries which would have occurred which have resulted in or have, a Parent Material Adverse Effect;
(fi) all governmental waivers, consents, orders, Agent and approvals legally required for the consummation other Purchasers shall have completed a due diligence review of the Merger Company and its Subsidiaries and their respective records, financial condition and operations, which due diligence review shall be satisfactory to Agent and the transactions contemplated hereby other Purchasers in their sole discretion; and
(j) Agent shall have been obtained and be paid Prism $75,000 in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;immediately available funds; and
(gk) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Companypaid to BMO, Inc. (or other nationally recognized investment banking firm reasonably acceptable by wire transfer of immediately available funds, an amount equal to Parent) an opinion, dated as $4,000,000 in prepayment of a portion of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16Original BMO Note.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Morton Industrial Group Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective (a) The obligations of each party to effect consummate the Merger shall be Stock Purchase and to effectuate the Closing are subject to the fulfillment at satisfaction or prior to the Closing Date waiver of the following conditionsconditions at the time of the Closing:
(ai) no judgment, order, injunction or decree (“Judgment”) issued by any United States federal, state, local or other government, or any United States court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality (a “Governmental Entity”) of competent jurisdiction or statute, law, rule or regulation (“Law”) or other legal prohibition (collectively, “Legal Restraints”) prohibiting the consummation of the Stock Purchase shall be in effect;
(ii) this Agreement shall not have been terminated in accordance with its terms; and
(iii) the waiting period (and any extension thereof) under the transactions contemplated hereby HSR Act (as defined in Section 2.02(b)) in respect of the Stock Purchase shall have lapsed or been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;terminated.
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation Theobligations of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required Buyer to consummate the Merger, shall have been obtained Stock Purchase and be in effect to effectuate the Closing are subject to the satisfaction or waiver of the following conditions at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated time of the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; andClosing:
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained each Seller set forth in this Agreement Article II shall be true and correct in all material respects on as of the date hereof and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the MergerClosing, except to the extent any such stockholders receive cash representation and warranty expressly relates to a specified date (in lieu which case on and as of fractional sharessuch specified date), and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and than the representations and warranties of the Company contained set forth in this Agreement Section 2.03, which shall be true and correct in all respects on at such time and at the Closing) except as of would not, individually or in the date made and on and as of aggregate, prevent, materially delay or materially impede the Closing Date as if made at and Closing;
(ii) each Seller shall have performed in all material respects all obligations to be performed by it as of such date, and Parent time under this Agreement;
(iii) the Buyer shall have received a Certificate certificate from each of the President and Chief Executive Officer or Sellers, signed on behalf of a Vice President each of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required Sellers by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parenttheir respective authorized signatory, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, conditions set forth in Section 1.03(b)(i) and such opinion shall not Section 1.03(b)(ii) have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial conditionsatisfied; and
(iv) the Buyer shall have received executed copies of IRS Form W-9 certifying that each Seller is exempt from U.S. federal backup withholding tax and the affidavit of each Seller that such Seller is not a “foreign person” within the meaning of Section 1445 of the United States Internal Revenue Code of 1986, as amended, in substantially the form of Exhibit B.
(c) The obligations of each Seller to consummate the Stock Purchase and to effectuate the Closing are subject to the satisfaction or waiver of the following conditions at the time of the Closing
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P.the representations and warranties of the Buyer set forth in Article III shall be true and correct as of the date hereof and as of the Closing, public accountants for Parent except to the extent any such representation and Subsidiarywarranty expressly relates to a specified date (in which case on and as of such specified date), and except as would not, individually or in the aggregate, prevent, materially delay or materially impede the Closing;
(ii) the Buyer shall have delivered performed in all material respects all obligations to be performed by it as of such time under this Agreement;
(iii) the Sellers shall have received a lettercertificate from the Buyer, dated executed by its authorized signatory, to the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating effect that the Merger will qualify as a pooling-of-interests transaction under APB 16conditions set forth in Section 1.03(c)(i) and Section 1.03(c)(ii) have been satisfied.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) The obligations of the Vendor and the Purchaser under this Agreement (other than those contained in this Clause 2, Clause 8 and the transactions contemplated hereby shall have been approved Clauses 26 to 28 and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(bClauses 30 to 40 which are unconditional) the shares of Parent Common Stock issuable are conditional in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; andrespects upon:
(i) all required material consents and approvals the European Commission having issued a decision under Council Regulation (EC) No. 139/2004 (the “Merger Regulation”) (or being deemed to have done so under Article 10(6) of lenders who have advanced $5,000,000 the Merger Regulation) declaring the purchase of the Shares by the Purchaser compatible with the common market and/or, if any aspect of the acquisition is referred to a competent authority of a European Union or EFTA State or more to Parent or than one such competent authorities under Article 9 of the Company and lessors of material leases shall have Merger Regulation, confirmation having been obtained and be in effect at the Effective Time; provided, however, received from each such competent authority that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay purchase of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived Shares by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effectPurchaser may proceed;
(bii) the Company shall have received an opinion receipt of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, evidence in a form and substance reasonably satisfactory to the CompanyVendor and the Purchaser that, effective as of the Closing Date if required, all other regulatory consents and based on representations of the Company appraisals have been received, all filings have been made and Parent, all waiting periods have expired or been terminated in relation to the effect that (i) the Merger of Subsidiary with and into the Company transactions contemplated in this Agreement pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within laws of any jurisdiction, including without limitation, the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(cAnti-Trust Improvements Act of 1976 (as amended) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date United States of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to ParentAmerica;
(eiii) since either (a) no factual information that has not been fairly disclosed in the Disclosure Letter or the Data Room or that has not been delivered prior to the date hereofhereof to the Purchaser’s Solicitors expressly in the context of their review of the LDPE Technology Licence (such information being referred to in this Clause 2(a)(iii) as “new information”) coming to the attention of either the Vendor or the Purchaser which relates to the period prior to the date hereof and which is relevant to the interpretation of the LDPE Technology Licence (and for the avoidance of doubt, there shall have been no changes that haveExxonMobil’s reaction, and of itself (as opposed to any new information put forward as the basis for, or in connection with such reaction), to the transactions contemplated by this Agreement will not be treated as a fact which is relevant to the interpretation of the LDPE Technology Licence), or (b) if such new information does come to the attention of the Vendor or the Purchaser, the obtaining of an opinion pursuant to Clause 9(b) or Clause 9(c) in relation to the LDPE Technology Licence which gives the confirmations contemplated by Clause 9(b)(ii) or Clause 9(c)(ii) (as the case may be);
(iv) the receipt of the items set out in paragraph 2(A) of Schedule 5 (“Pensions”);
(v) the completion of the steps set out in Schedule 11 (“Pre-sale Reorganisation”);
(vi) no event or events shall have circumstance, other than an event or circumstance which is constituted by matters which pertain either to general economic conditions affecting the United Kingdom, European or world economy or to conditions in the petrochemicals industry generally, having occurred which has or is more than likely to have resulted in a material adverse effect on the financial or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation operational condition of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(vii) the Vendor having complied in all material respects with its obligations under Clause 8 (or, if the Vendor has failed to comply in all material respects with such obligations, such failure not having been remedied on or before Completion);
(viii) no event or circumstance having occurred or been discovered which, if the Purchaser were to proceed to Completion, would entitle the Purchaser to bring a claim (or claims in aggregate) for one or more breaches of Warranty and which would have (or would be more than likely to have) a material adverse effect on the Company, or a claim (or claims in aggregate) for a material amount under the Environmental Covenant;
(ix) no event or circumstance, other than an event or circumstance which is constituted by matters which pertain either to general economic conditions affecting the United Kingdom, European or world economy or to conditions in the petrochemicals industry generally, having occurred or been discovered which, if the Warranties were repeated immediately before Completion, would have constituted a breach of Warranty and which would have (or would be more than likely to have) a material adverse effect on the Company; and
(x) no order or judgment of any court or governmental, statutory or regulatory body having been issued or made prior to Completion, and no legal or regulatory requirement remaining to be satisfied, which has the effect of making unlawful or otherwise prohibiting either (i) the transfer of the Shares to the Purchaser or (ii) the transactions contemplated by this Agreement other than the transfer of the Shares to the Purchaser (in the case of (ii) only) to a material extent.
(b) The Vendor shall use all reasonable endeavours promptly to procure the satisfaction of the conditions set out in sub-clause (a)(i), (ii), (iv), (v), (vii) and (x). The Purchaser shall use all reasonable endeavours promptly to procure the satisfaction of the conditions set out in sub-clause (a)(i), (ii), (iv), and (x)
(c) Without prejudice to sub-clause (b) above, but subject to sub-clause (e) below, the Purchaser shall, as promptly as practicable, take all reasonable steps within its control (including making filings and notifications and providing undertakings to merger control authorities where such undertakings would not have a material adverse effect on the value of the Acquired Business) to obtain all consents, approvals or actions of any governmental or regulatory body or any other person which are required in order to complete the sale and purchase of the Shares including without limitation:
(i) providing information which is requested by any such governmental or regulatory body or other person;
(ii) co-operating with and assisting the Vendor and the Company to obtain any consents, approvals or actions of any governmental or regulatory body or other person required by either the Vendor or the Company;
(iii) notifying the Vendor, and providing copies, of any communications from any such governmental or regulatory body or other person in relation to obtaining any such consent, approval or action;
(iv) disclosing to the Vendor or the Vendor’s advisers any information relating to the Purchaser or the Purchaser’s Group as may be reasonably required by the Vendor for the purposes of obtaining any such consent, approval or action; and
(v) where requested by the Vendor, providing the Vendor (or advisers nominated by the Vendor) with draft copies of all submissions and communications to governmental or regulatory bodies or other persons at such time as will allow the Vendor a reasonable opportunity to provide comments on such submissions and communications before they are submitted or sent and amending all such submissions or communications in accordance with the reasonable requirements of the Vendor (or such nominated advisers) and providing the Vendor (or such nominated advisers) with copies of all such submissions and communications in the form submitted or sent.
(d) Without prejudice to sub-clause (b) above, the Affiliate Agreements Vendor shall, so far as is reasonably necessary, and as promptly as practicable, provide the Purchaser with such reasonable assistance as the Purchaser may reasonably require for the purpose of fulfilling the Purchaser’s obligations under sub-clause (c) above, including without limitation:
(i) providing information which is requested by any governmental or regulatory body or other persons whose consents, approvals or other actions are required in order to be delivered permit completion of the transactions contemplated by this Agreement, including information which the Purchaser reasonably considers necessary for it to Parent pursuant make all notifications and filings to Section 7.4 shall have been furnished as any such body or person;
(ii) co-operating with and assisting the Purchaser and the Company to obtain any consents, approvals or actions of any governmental or regulatory body or other person required by Section 7.4either the Purchaser or the Company;
(iii) notifying the Purchaser, and providing copies, of any communications from any such governmental or regulatory body or other persons in relation to obtaining any such consent, approval or action where such communications have not been independently or simultaneously supplied to the Purchaser;
(iv) where requested by the Purchaser, providing the Purchaser (or advisers nominated by the Purchaser) with draft copies of all submissions and communications to governmental or regulatory bodies or other persons at such time as will allow the Purchaser a reasonable opportunity to provide comments on such submissions and communications before they are submitted or sent and amending all such submissions or communications in accordance with the reasonable requirements of the Purchaser (or such nominated advisers); and providing the Purchaser (or such nominated advisers) with copies of all such submissions and communications in the form submitted or sent.
(e) since Nothing in this Clause 2 shall impose any obligation on any party to:
(i) enter into agreements to hold separate or dispose of any part of the date hereofbusinesses of the Vendor’s Group or the Purchaser’s Group (as the case may be); or
(ii) enter into agreements to supply any products; or
(iii) enter into agreements other than on commercially reasonable terms; or
(iv) enter into any consent judgment, there shall have been no changes consent agreement or undertaking in relation to any part of its business which competes with all or part of the Acquired Business; or
(v) disclose confidential information relating to its financial or business affairs to any person other than to another party to this Agreement or such other party’s legal advisors or to governmental or regulatory authorities; or
(vi) where that haveparty is obliged under this Clause 2 to disclose confidential information relating to its financial or business affairs to another party to this Agreement or its legal advisers, and no event or events shall have occurred disclose such information beyond the extent necessary to enable such other party to comply with its obligations under this Clause 2 (which have resulted in or havemay, a Company Material Adverse Effect;by way of example, involve disclosure of specific information to legal advisers on the basis that it will not be disclosed to such other party).
(f) all governmental waiversThe conditions set out in sub-clauses (a)(i), consents(ii), orders (iv), (v), (viii) and approvals legally required for (x) may only be waived by the consummation written agreement of each party to this Agreement. The conditions set out in sub-clauses (a)(iii), (vi), (vii) and (ix) may be waived in writing by the Purchaser alone. For the avoidance of doubt, any such waiver by the Purchaser shall not in any respect constitute a waiver by the Purchaser of any rights which it might have in respect of the Merger circumstances giving rise to the non-satisfaction of the relevant condition, including but not limited to any right which it may have to bring a claim for breach of warranty in the case of the non-satisfaction of the conditions set out in sub-clauses (a)(viii) or (ix), provided that if new information (as defined in sub-clause (a)(iii)) emerges in relation to the LDPE Technology Licence and the transactions contemplated hereby Purchaser waives the condition set out in sub-clause (a)(iii), that new information shall be deemed to have been obtained fairly disclosed in the Disclosure Letter and be the Purchaser’s rights to bring a claim for breach of Warranty in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent respect of the Merger;Warranties contained in paragraph 49 or, insofar as it relates to the LDPE Technology Licence, paragraph 51(A), of Schedule 3 shall be limited accordingly.
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. If any fact which makes any of the conditions set out in sub-clause (a) incapable of being satisfied on or other nationally recognized investment banking firm reasonably acceptable before the relevant Termination Date comes to the Parent) an opinion reasonably acceptable knowledge of any party at any time prior to Completion then that party shall notify the others of that fact and any party shall be entitled to treat this Agreement as terminated by written notice to the Parent, dated others provided that (i) no party shall be entitled to treat this Agreement as terminated where that party is in breach of its obligations under this Clause where such breach has contributed materially to the non-satisfaction of the date on which condition and (ii) no party other than the Proxy Statement and Prospectus is first distributed Purchaser or the Purchaser’s Guarantor shall be entitled to treat this Agreement as terminated by reference to the shareholders incapability of Parentsatisfaction of any of the conditions the satisfaction of which may be waived by the Purchaser alone, to unless and until the effect Purchaser states in writing that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall it will not have been withdrawn;waive that condition.
(h) If the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which conditions set out in sub-clause (a) are not materially less than satisfied or waived in accordance with sub-clause (f) on or before the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements relevant Termination Date, this Agreement shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; andautomatically terminate.
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P.If this Agreement is terminated or terminates pursuant to this Clause then the obligations of each party under this Agreement (except for obligations under this Clause 2 and Clauses 26 to 28 and Clauses 30 to 40) shall automatically terminate provided that the rights and liabilities of the parties which have accrued prior to termination shall subsist and provided further that, public accountants for Parent the avoidance of doubt, no rights and Subsidiaryliabilities in respect of the Warranties or in respect of any breach of Clause 8 shall subsist following such termination. The only remedy available to any party (i) for another party’s failure to use all reasonable endeavours pursuant to sub-clause 2(b), or (ii) where the failure to satisfy a condition under Clause 2(a) has been caused by the Vendor’s breach of Clause 8 or a breach of a Warranty, shall in either case be compensation for wasted costs and expenses incurred in connection with negotiating this Agreement and carrying out due diligence on the Company, and such remedy shall only be available to the extent that such other party could reasonably have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16prevented such failure or breach.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective The obligations of each party to effect the Merger shall be Dealer Managers hereunder are subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Actaccuracy, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunctionwhen made, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Commencement Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals commencement of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay each extension of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of Exchange Offer as set forth in the Company to Effect the Merger. Unless waived by the CompanyProspectus (each, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(aan "Extension Date") Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Acceptance Date (as if made at and as of on each such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in herein, to performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Registration Statement shall have become effective not later than the first full business day next following the date of this Agreement or such later date as shall be true consented to in writing by the Dealer Managers; at or before the Commencement Date, each Extension Date and correct the Acceptance Date, no stop order suspending such effectiveness nor any order regarding the Exchange Offer or directed to any document incorporated by reference in all respects on and as the Prospectus or to any Incorporated Document or to any of the date Exchange Offer Materials, to the 13E-4 Statement or to the 13E-3 Statement shall have been issued and prior to that time no proceeding regarding any such stop order or order shall have been initiated or threatened by the Commission and no challenge shall have been made and on and as to the accuracy or adequacy of any document incorporated by reference in the Prospectus or to any Incorporated Document or to any of the Closing Date as if made at and as Exchange Offer Materials, to the 13E-4 Statement or to the 13E-3 Statement; any request of such datethe Commission for inclusion of additional information in the Registration Statement or the Prospectus, and Parent the 13E-4 Statement or the 13E-3 Statement or otherwise shall have received a Certificate been complied with; and the Company shall not have filed with the Commission the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus or any document incorporated by reference in any of the President and Chief Executive Officer foregoing documents or of a Vice President any Incorporated Document or any amendment thereto, the 13E-4 Statement or the 13E-3 Statement or any amendment thereto without the consent of the Company, in form and substance reasonably satisfactory to Parent to that effect;Dealer Managers.
(b) Parent No Dealer Manager shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel discovered and disclosed to the CompanyCompany on or prior to the Commencement Date, effective as any Extension Date or the Acceptance Date that the Registration Statement or the Prospectus or any document incorporated by reference in the foregoing documents or any Incorporated Document or any of the Closing DateExchange Offer Materials or the 13E-4 Statement or the 13E-3 Statement or any amendment or supplement thereto contains an untrue statement of a fact which, substantially in the form set forth opinion of counsel for the Dealer Managers, is material or omits to state a fact which, in Exhibit 8.3(b) attached hereto; --------------the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Parent shall have received "comfort" letters in customary All corporate proceedings and other legal matters incident to the authorization, form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date validity of the Proxy Statementthis Agreement, the effective date Indenture and Debentures, the form of the Registration Statement and the Closing Date (or such Prospectus and any document incorporated by reference in the foregoing documents and any Incorporated Document, other date reasonably acceptable to Parent) with respect to certain than financial statements and other financial information included in data, the Registration 13E-4 Statement, the 13E-3 Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues all other legal matters relating to this Agreement and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger Exchange Offer and the transactions contemplated hereby and thereby shall be satisfactory in all respects to counsel for the Dealer Managers and the Company shall have been obtained furnished to such counsel all documents and be in effect at information that they may reasonably request to enable them to pass upon such matters.
(d) Miller, Canfield, Paddock and Stone, P.L.C. shall have furnished to the Closing Dealer Managers its opinion addressed to each Dealer Manager and dated the Commencement Date, as counsel of the Company, to the effect that:
i) The Company and each of its subsidiaries have been duly incorporated, are validly existing and in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and in good standing as foreign corporations in all jurisdictions in which their respective ownership of property or the conduct of their respective businesses requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the Company or the Company and its subsidiaries taken as a whole), and have all power and authority necessary to own their respective properties and conduct the businesses in which they are engaged as described in the Prospectus. Except as may be disclosed in the Registration Statement, all outstanding shares of capital stock of the Company's subsidiaries are owned by the Company directly, or indirectly through wholly owned subsidiaries, free and clear of any lien, pledge and encumbrance or any claim of any third party;
ii) The Base Indenture has been duly authorized, executed and delivered by the Company and the Trustee and qualified under the Trust Indenture Act and the Supplemental Indenture has been duly authorized by the Company and qualified under the Trust Indenture Act, and, when it is executed and delivered by authorized officers of the Company and duly authorized, executed and delivered by the Trustee, the Indenture will constitute a valid and legally binding instrument of the Company enforceable in accordance with its terms;
iii) The Debentures have been duly authorized by the Company and, when executed and delivered by authorized officers of the Company, duly authenticated by the Trustee and exchanged pursuant to the Exchange Offer, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms and entitled to the benefits of the Indenture;
iv) The outstanding Shares have been duly authorized and are validly issued, fully paid and non-assessable with no personal liability attaching to the ownership thereof;
v) The Registration Statement is effective under the Act, no stop order suspending its effectiveness has been issued, and, to the best knowledge of such counsel after due inquiry, no proceeding for that purpose is pending or threatened by the Commission;
vi) No order regarding the Exchange Offer or directed to any document incorporated by reference in the Prospectus or to any Incorporated Document has been issued and, to the best knowledge of such counsel after due inquiry, the issuance of any such order has not been threatened and no challenge has been made to the accuracy or adequacy of any such document;
vii) The Registration Statement, the Prospectus, the 13E-4 Statement and the 13E-3 Statement (except that no opinion need be expressed as to the financial statements contained therein) comply as to form in all material respects with the requirements of the Act, the Exchange Act and the Trust Indenture Act and the applicable rules and regulations under said Acts and the documents incorporated or deemed to be incorporated by reference in the Prospectus which have been filed prior to the Commencement Date (except that no opinion need be expressed as to the financial statements contained therein) comply as to form in all material respects with the requirements of the Exchange Act and the 1934 Act Rules and Regulations;
viii) The statements made in the Prospectus under the captions "Description of QUICS" and "Description of Preferred Stock," insofar as they purport to summarize the provisions of agreements and other instruments specifically referred to therein, are accurate summaries of such agreements and instruments in all material respects;
ix) Such counsel does not know of any litigation or any governmental authority shall proceeding pending or threatened against the Company or any of its subsidiaries which challenge the making of the Exchange Offer, or the acquisition by the Company of the Shares or otherwise directly or indirectly relates to the Exchange Offer, or which might result in any material adverse change in the prospects of the Company or of the Company and its subsidiaries taken as a whole or which is required to be disclosed in the Prospectus which is not disclosed and correctly summarized therein;
x) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Act or by the 1933 Act Rules and Regulations, or which were required to be filed as exhibits to the 13E-4 Statement or the 13E-3 Statement or any document incorporated by reference in any Preliminary Prospectus or the Prospectus by the Exchange Act or the 1934 Act Rules or Regulations which have promulgated not been filed as exhibits to the Registration Statement, the 13E-4 Statement, the 13E-3 Statement or such document or incorporated therein by reference as permitted by the 1933 Act Rules and Regulations or the 1934 Act Rules and Regulations as required;
xi) To the best of such counsel's knowledge after due inquiry, neither the Company nor any statuteof its subsidiaries is in violation of its corporate charter or by-laws, or in default under any agreement, indenture or instrument the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole; and
xii) This Agreement has been duly authorized, executed and delivered by the Company; the commencement and consummation by the Company of the Exchange Offer and the transactions contemplated thereby, the execution, delivery and performance of this Agreement and compliance by the Company with the provisions of the Exchange Offer Materials, the Indenture and the Debentures will not conflict with, or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or any of its subsidiaries pursuant to the terms of, or constitute a default under (with or without notice and/or lapse of time), any agreement, indenture or instrument known to such counsel, or result in a violation of the corporate charter or by-laws of the Company or any of its subsidiaries or any statute or any order, rule or regulation whichof any court or governmental agency having jurisdiction over the Company, when any of its subsidiaries or their respective properties the effect of which violation or default would be material to the Company and its subsidiaries taken together as a whole; and no consent, authorization or order of, or filing or registration with, any court or governmental agency is required for the execution, delivery and performance of this Agreement, the Indenture and the Debentures, except such as may be required by the Act, the Trust Indenture Act, the Exchange Act or state securities laws or state laws, regulations or rules which govern exchange offers. In rendering such opinion, such counsel (i) may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of Michigan, the laws of the State of New York and the Delaware General Corporation Law and (ii) may rely, as to matters involving the application of New York law and Delaware law to the extent such counsel deems proper and specifies in its opinion, upon the opinion of other counsel of good standing, provided that such other counsel is satisfactory to counsel for the Dealer Managers and furnishes a copy of its opinion to the Dealer Managers and (iii) may state that the opinions set forth in clauses (ii) and (iii) above are subject to the qualification that the enforceability of the Company's obligations under the Indenture and the Debentures may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equity principles. Such counsel shall also have furnished to each Dealer Manager a statement, addressed to such Dealer Manager, dated the Commencement Date to the effect that such counsel is counsel of the Company and no facts have come to the attention of such counsel which leads such counsel to believe that the Registration Statement, as of the Effective Date and as of the Commencement Date (if different), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus, any Exchange Offer Materials, the 13E-4 Statement or the 13E-3 Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing opinion and statement may be qualified by a statement to the effect that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus, the Exchange Offer Materials, the 13E-4 Statement or the 13E-4 Statement except as and to the extent set forth in clause (viii) above.
(e) The Company shall have furnished to each Dealer Manager on the Commencement Date a certificate, dated the Commencement Date, of its Chairman, its President or a Vice President and its Treasurer or an Assistant Treasurer stating that:
i) The representations, warranties and agreements of the Company in Paragraph 5 are true and correct as of the Commencement Date; the Company has complied with all such promulgationsits agreements contained herein; and the conditions set forth in Paragraph 7(a) have been fulfilled; and
ii) They have carefully examined the Registration Statement and the Prospectus, would materially impair the value to Parent Incorporated Documents, the other Exchange Offer Materials, the 13E-4 Statement and the 13E-3 Statement and, in their opinion, the Registration Statement and the Prospectus, as of the Merger;Effective Date and the Commencement Date (if different), and the Incorporated Documents, as of their respective dates, and the 13E-4 Statement and the 13E-3 Statement and any other Exchange Offer Materials, as of the Commencement Date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Company shall have furnished to the Dealer Manager on the Commencement Date a letter of Ernst & Young, addressed to each Dealer Manager and dated the Commencement Date, confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as of the date of such 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 days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters as the Dealer Managers shall reasonably specify.
(g) Parent On the Acceptance Date, and prior to acceptance of any Shares tendered:
i) Miller, Canfield, Paddock and Stone, P.L.C. shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable furnished to the ParentDealer Managers its opinion addressed to each Dealer Manager and dated the Acceptance Date, as counsel for the Company, confirming as of such date their opinion furnished pursuant to Paragraph 7(d) an hereof except that such opinion reasonably acceptable shall give effect to the Parentexecution and delivery by the Company of the instruments referred to therein and the execution, authentication, issuance or countersigning, as the case may be, by the Company or the Trustee, as the case may be, of the securities referred to therein;
ii) The Company shall have furnished to the Dealer Managers a certificate, dated the Acceptance Date, of its Chairman, its President or a Vice President and its Treasurer or an Assistant Treasurer confirming as of such date the date on which matters set forth in the Proxy Statement and Prospectus is first distributed certificate furnished to the shareholders of Parent, Dealer Managers pursuant to Paragraph 7(f) hereof and to the effect that since the Exchange Ratio is fairCommencement Date, from a financial point of view, to Parent's stockholders, and such opinion shall not no event has occurred which should have been withdrawn;set forth in a supplement to or amendment of the Prospectus which has not been set forth in such a supplement or amendment; and
(hiii) the The Company shall have delivered furnished to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte Dealer Managers a letter of Ernst & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company Young addressed to each Dealer Manager and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Acceptance Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating confirming that the Merger will qualify as a pooling-of-interests transaction under APB 16.they are independe
Appears in 1 contract
Sources: Dealer Manager Agreement (Source One Mortgage Services Corp)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger Party hereto shall be subject give prompt notice to the fulfillment at or prior to the Closing Date other of the following conditionsoccurrence, or failure to occur, at any time from the date hereof until the Effective Date, of any event or state of facts which occurrence or failure would, would be reasonably likely to or could reasonably:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote cause any of the stockholders representations or warranties of such Party hereto contained herein to be untrue or inaccurate in any respect on the Company under applicable law and applicable listing requirementsdate hereof or on the Effective Date;
(b) the shares of Parent Common Stock issuable result in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;failure to comply with or satisfy any covenant or agreement to be complied with or satisfied by such Party hereto prior to the Effective Date; or
(c) result in the waiting period applicable failure to the consummation satisfy any of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective conditions precedent in accordance with the provisions favour of the Securities Actother Party hereto contained in Section 5.2 and Section 5.3 or 5.4, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by as the SEC or any state regulatory authorities;
case may be. Subject as herein provided, a Party hereto may (ea) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing elect not to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and complete the transactions contemplated herebyhereby by virtue of the conditions in Section 5.2 and Section 5.3 or 5.4, and all consents from lenders required to consummate the Mergeras applicable, shall have been obtained and be in effect at the Effective Time;
not being satisfied or waived or (hb) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Timeexercise any termination right arising therefrom; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents (i) promptly and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or in any event prior to the Closing Date Effective Date, the Party hereto intending to rely thereon has delivered a written notice to the other Party hereto specifying in reasonable detail the breaches of covenants or untruthfulness or inaccuracy of representations and warranties or other matters that the Party hereto delivering such notice is asserting as the basis for the exercise of the following additional conditions:
termination right, as the case may be, and (aii) Parent if any such notice is delivered, and Subsidiary shall have performed in all material respects their agreements contained in a Party hereto is proceeding diligently, at its own expense, to cure such matter, if such matter is capable of being cured, the Party hereto that has delivered such notice may not terminate this Agreement required to be performed on or until the earlier of the Outside Date and the expiration of a period of 15 days from date of delivery of such notice. If such notice has been delivered prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as date of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ Meeting or the Excellon Meeting, the ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to Meeting and the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will Excellon Meeting shall each be a party to adjourned or postponed until the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as expiry of such date, and Parent shall have received a Certificate period without causing any breach of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such any other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16provision contained herein.
Appears in 1 contract
Sources: Arrangement Agreement
Conditions. SECTION 8.1 7.1. Conditions to Each Party's Obligation Obligations to Effect the Merger. Unless waived by the parties, the The respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
7.1.1. No action or proceeding shall have been instituted before a court or other governmental body by any governmental agency or public authority to restrain or prohibit the transactions contemplated by this Agreement or to obtain an amount of damages or other material relief in connection with the execution of the Agreement or the related agreements or the consummation of the Merger; and no governmental agency shall have given notice to any party hereto to the effect that consummation of the transactions contemplated by this Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the Merger.
7.1.2. All consents, authorizations, orders, and approvals of (aor filings or registrations with) any governmental commission, board, or other regulatory body required in connection with the execution, delivery, and performance of this Agreement shall have been obtained or made, except for filings in connection with the Merger and any other documents required to be filed after the Effective Time, and except where the failure to have obtained or made any such consent, authorization, order, approval, filing, or registration would not have a Material Adverse Effect on the business of HealthStream or M3 following the Effective Time.
7.1.3. HealthStream shall have received from M3 copies of all resolutions adopted by the Board of Directors and stockholders of M3 in connection with this Agreement and the transactions contemplated hereby hereby. M3 shall have been approved received from HealthStream and Merger Sub copies of all resolutions adopted by the requisite vote Board of the Directors and stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable each respective company in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance connection with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger this Agreement and the transactions contemplated hereby.
7.1.4. Each M3 Stockholder shall have signed a form of consent which (a) consents to the terms of the Merger and to the taking of stockholder action to approve the Merger without a meeting, (b) acknowledges that he or she is aware of his or her rights to dissent to the Merger and demand payment for his or her shares of M3 Common Stock in accordance with the Texas Act, and all consents from lenders required (c) waives such rights to consummate the Merger, shall have been obtained dissent and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvalsdemand payment.
SECTION 8.2 7.2. Conditions to Obligation Obligations of M3 and the Company Principal Stockholders to Effect the Merger. Unless waived by The obligations of M3 and the Company, the obligation of the Company Principal Stockholders to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary 7.2.1. HealthStream shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company HealthStream and Merger Sub contained in this Agreement and in any document delivered in connection herewith shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such dateDate, and Parent M3 shall have received a Certificate certificate of the President or the Chief Financial Officer of HealthStream, dated the Closing Date, certifying to such effect.
7.2.2. From the date of this Agreement through the Effective Time, there shall not have occurred any change in the financial condition, business, or operations of HealthStream, that would have or would be reasonably likely to have a HealthStream Material Adverse Effect.
7.2.3. M3 and Chief Executive Officer or of the Principal Stockholders shall have received a Vice President written opinion, dated as of the CompanyClosing Date, from counsel for HealthStream substantially in the form and substance reasonably satisfactory to Parent to that effect;of Exhibit C attached hereto.
(b) Parent 7.2.4. HealthStream shall have executed Employment Agreements with Robe▇▇ ▇▇▇▇▇ ▇▇▇ Will▇▇▇ ▇▇▇▇▇, ▇▇bstantially in the form of Exhibit E attached hereto.
7.2.5. M3 shall have received an opinion from of counsel satisfactory to it that the Merger will qualify as a reorganization under Section 368(a) of the Code.
7.2.6. HealthStream shall have executed Stock Vesting Agreements with Robe▇▇ ▇▇▇▇▇ ▇▇▇ Will▇▇▇ ▇▇▇▇▇, ▇▇bstantially in the form of Exhibit I attached hereto.
7.2.7. HealthStream shall have granted either Robe▇▇ ▇▇▇▇▇ ▇▇ Will▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel itation rights to its Board of Directors and shall have executed the Visitation Rights Letter substantially in the form of Exhibit J attached hereto.
7.3. Conditions to Obligations of HealthStream and Merger Sub to Effect the Merger. The obligations of HealthStream and Merger Sub to effect the Merger shall be subject to the Company, effective fulfillment at or prior to the Closing Date of the following conditions:
7.3.1. M3 and the Principal Stockholders shall have performed their respective agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of M3 and the Principal Stockholders contained in this Agreement and in any document delivered in connection herewith shall be true and correct as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished same extent as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at if made on the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent HealthStream shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as a certificate of the date on which the Proxy Statement Chief Executive Officer of M3 and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average each of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, Principal Stockholders dated the Closing Date, addressed certifying to Parentsuch effect.
7.3.2. From the date of this Agreement through the Effective Time, there shall not have occurred any change in form and substance the financial condition, business, operations, or prospects of M3, that would have or would be reasonably satisfactory likely to Parent stating that the Merger will qualify as have a pooling-of-interests transaction under APB 16M3 Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Healthstream Inc)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the MergerMergers. Unless waived by the parties, the The respective obligations of each party to effect the Merger Mergers shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
: (ai) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote Requisite Stockholder Approvals of the stockholders of the Company Sellers under applicable law and applicable listing requirements;
; (bii) the shares of Parent Common Stock issuable in the Merger Mergers and those to be reserved for issuance upon exercise of stock options or warrants or the conversion of convertible securities shall have been authorized for listing quotation on Nasdaq the NYSE, or such other exchange on which Parent Common Stock is then primarily traded, upon official notice of issuance;
; (c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(diii) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
; (eiv) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of any of the Merger Mergers shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
; (fv) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of any of the Merger Mergers or make the consummation of any of the Merger Mergers illegal;
; (gvi) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger Mergers and the transactions contemplated hereby, and all consents from lenders required to consummate the MergerMergers, shall have been obtained and be in effect at the Merger 1 Effective Time;
, except where the failure to obtain the same would not be reasonably likely to have a Material Adverse Effect following the Merger 1 Effective Time; and (hvii) the Sellers and Purchasers shall have received an opinion of Coopers & ▇▇▇▇Lybr▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent▇.▇.P., in form and substance reasonably satisfactory to Parentthe Sellers and Purchasers, stating dated the Closing Date, to the effect that the (A) Merger 2 will qualify as a pooling-of-interests transaction reorganization under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay Section 368 of the Code and (B) Parent and Convest will each be a "party responsible for obtaining such consents and approvals.
SECTION 8.2 to a reorganization" within the meaning of 368(b) of the Code with respect to Merger 2. (b) Conditions to Obligation of the Company Sellers to Effect the MergerMergers. Unless waived by the CompanySellers, the obligation of the Company Sellers to effect the Merger Mergers shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
: (ai) Parent and Subsidiary Purchasers shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Purchasers contained in this Agreement shall be true and correct in all material respects on and as of the date made and (except to the extent that such representations and warranties speak as of an earlier date) on and as of the Closing Date as if made at and as of such date, and the Sellers shall have received a certificate of the President or a Vice President of Parent and Subsidiary of the President or a Vice President of EDI-Sub to that effect; (ii) since the date hereof, there shall have been no changes that constitute, and no event or events (including, without limitation, litigation developments) shall have occurred which have resulted in or constitute, either individually or in the aggregate, a Material Adverse Change; (iii) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Mergers and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date except for such waivers, consents, orders and approvals the failure of which to have been 43 obtained would not have, either individually or in the aggregate, a Material Adverse Effect, and no governmental authority shall have promulgated after the date hereof any statute, rule or regulation which, when taken together with all such promulgations, would cause a Material Adverse Change; and (iv) each Seller shall have received the bring-down opinion of its respective financial advisor, dated as of the date of the definitive Joint Proxy Statement/Prospectus, to the effect that the consideration to be received in the Mergers by the respective holders of the Convest Common Stock and the Edisto Common Stock is fair to such holders from a financial point of view. (c) Conditions to Obligation of Purchasers to Effect the Mergers. Unless waived by Parent, the obligations of Purchasers to effect the Mergers shall be subject to the fulfillment at or prior to the Merger 1 Effective Time of the additional following conditions: (i) the Sellers shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Sellers contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company Parent shall have received a certificate Certificate of the Chairman of the Board and Chief Executive Officer, the President or of a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary each Seller to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary the Affiliate Agreements and Company will each Shareholders Agreements required to be a party delivered to the reorganization within the meaning of Parent pursuant to Section 368(b8(k) of the Codeshall have been furnished as required by Section 8(k); and (iii) the stockholders of the Company will not recognize gain each Edisto Option and each Convest Option shall have either been redeemed, exercised or loss as a result of the Merger, except to the extent such stockholders receive cash canceled in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(baccordance with Section 4(c); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(eiv) since the date hereof, there shall have been no changes that haveconstitute, and no event or events (including, without limitation, litigation developments) shall have occurred which have resulted in or haveconstitute, either individually or in the aggregate, a Parent Material Adverse Effect;
Change; (fv) all governmental waivers, consents, orders, orders and approvals legally required for the consummation of the Merger Mergers and the transactions contemplated hereby shall have been obtained and be in effect at the Closing DateDate except for such waivers, consents, orders and approvals the failure of which to have been obtained would not have, either individually or in the aggregate, a Material Adverse Effect, and no governmental authority shall have promulgated after the date hereof any statute, rule or regulation which, when taken together with all such promulgations, would materially impair cause a Material Adverse Change; (vi) the value to Parent number of Dissenting Shares shall not exceed three percent of the Merger;
total number of shares of Edisto Common Stock outstanding on the date hereof; (gvii) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable with respect to Parent) an opinionthat certain letter agreement, dated as of the date on which the Proxy Statement May 1, 1995, among Convest, Edisto E&P and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Coral Reserves Energy Corp. ("▇▇. ▇▇▇▇▇▇Coral"), a form and the preferential purchase right of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and SubsidiaryCoral contained therein, the obligations of Parent and Subsidiary to effect the Merger Sellers shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
have obtained (a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as written waiver of such dateright by Coral, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as exercise of such right by Coral in accordance with the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached heretoterms of such agreement for a price of $14,000,000; --------------
and (c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parentviii) with respect to that certain financial statements Conveyance of Production Payment dated February 4, 1992, between NRM Operating Company, L.P. and other financial information included Enron Reserve Acquisition Corp. ("ERAC"), Sellers shall have obtained the express written consent of ERAC to (a) the transfer of the interest of Edisto E&P in the Registration Statement subject property pursuant to this Agreement, and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(db) the Affiliate Agreements succession, by Parent or by any Subsidiary of Parent selected from time to time by Parent in its sole discretion, to Edisto E&P's interests and obligations under such agreement; provided, however, that such successor shall not be required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required assume any obligations, other than those currently borne by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to ParentEdisto E&P, in form and substance reasonably satisfactory order for Sellers to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16obtain such consent. 44 SECTION 10.
Appears in 1 contract
Conditions. SECTION 8.1 Section 6.1 Conditions to Each Party's Obligation to Effect the MergerObligations. Unless waived by the parties, the The respective obligations of each party to effect the Merger transactions contemplated by this Agreement shall be subject to the fulfillment satisfaction at or prior to the Closing Date of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the The waiting period applicable to the consummation of the Merger under transactions contemplated by this Agreement required pursuant to the HSR Act shall have expired or been terminated;.
(db) the Registration Statement All material authorizations, consents, orders or approvals of Governmental Entities set forth on Schedule 6.1(b) shall have become effective in accordance with the provisions of the Securities Actoccurred, been filed or been obtained and no stop order suspending such effectiveness not rescinded.
(c) There shall have been issued and remain not be in effect and no proceeding for that purpose shall have been instituted by the SEC any statute, regulation, order, decree or judgment of any state regulatory authorities;
(e) no preliminary Governmental Entity which makes illegal or permanent injunction enjoins or other order or decree by any federal or state court which prevents the consummation of the Merger transactions contemplated by this Agreement.
(d) The Court shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action entered the Final Order which shall have been takenauthorized the Seller to convey to the Buyer all of its right, title and interest in and to the Purchased Assets free and clear of all Liens other than Permitted Liens with respect to the Owned Real Property, and no statute, rule or regulation the Court shall have been enacted, by any state or federal government or governmental agency in approved the United States which would prevent the consummation assignment and assumption of the Merger or make Assumed Contracts as contemplated hereby. The Final Order, which must be reasonably satisfactory in form and substance to the consummation of Buyer, shall authorize the Merger illegal;
(g) all governmental waivers, consents, orders Seller and approvals legally required for the consummation of the Merger Parent to enter into and consummate this Agreement and the transactions contemplated hereby, and all consents from lenders required to consummate the Mergerfurther provide, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P.among other things, certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger transfers of Subsidiary with and into the Company Purchased Assets by the Seller to the Buyer pursuant to the Merger this Agreement and applicable state law (a) are or will be treated legal, valid and effective transfers of the Purchased Assets; (b) vest or will vest Buyer with good title to the Purchased Assets (including good and marketable title to the Real Property), free and clear of all Liens except Permitted Liens; (c) constitute the best offer or value received by Seller for United States federal income tax purposes the Purchased Assets; and (d) do not and will not subject Buyer to any liability as a reorganization within the meaning successor of Section 368(a) of the CodeSeller; (ii) Parent, Subsidiary and Company will each be a party the Court retains jurisdiction to enforce the reorganization within the meaning provisions of Section 368(b) of the Codethis Agreement in all respects; and (iii) the stockholders provisions of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, Final Order are nonseverable and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b)mutually dependent; --------------
(civ) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be by this Agreement are undertaken by the Buyer in effect good faith, as that term is used in Section 363(m) of the Bankruptcy Code; (v) pursuant to Section 363(n) of the Bankruptcy Code, the consideration paid under this Agreement was not controlled by an agreement among potential bidders at the Closing Date, hearing; (vi) the Seller and no governmental authority shall the Parent have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair fully satisfied the value to Parent requirements of Sections 365(b)(1)(A) and (B) of the Merger;
Bankruptcy Code with regard to the Assumed Contracts and there are no defaults or amounts due and owing on the Assumed Contracts; (gvii) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as terms and provisions of the date Final Order and this Agreement shall remain in full force and effect upon the dismissal or conversion of the Chapter 11 Cases to another chapter under the Bankruptcy Code and (viii) the terms and provisions of the Final Order and this Agreement shall be binding on which all creditors and parties in interest. The Seller and the Proxy Statement Parent shall seek and Prospectus is first distributed use their respective reasonable efforts to include in the Final Order that the transfers and assignments to the stockholders Buyer contemplated by this Agreement (including, without limitation, the transfer and assignment of the CompanyReal Property) shall, pursuant to the effect that the consideration to be received by the stockholders Section 1146(c) of the Company in the Merger is fairBankruptcy Code, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at imposition or prior to the Effective Time payment of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties any transfer taxes of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16nature.
Appears in 1 contract
Sources: Asset Purchase Agreement (Levitz Furniture Corp /Fl/)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations The effectiveness of each party to effect the Merger shall be this Amendment is subject to the fulfillment at or prior to the Closing Date satisfaction of the following conditionsconditions precedent, unless specifically waived by Agent:
(a) Agent shall have received the following documents, each in form and substance satisfactory to Agent:
(i) This Amendment, duly executed by Borrowers, together with the Consent and Ratification (the "Ratification") hereto, duly executed by the Guarantors;
(ii) The Reimbursement Agreement, duly executed by Borrowers; and
(iii) Company General Certificates dated as of the date of this Agreement Amendment, in form and substance satisfactory to Agent, certified by the Secretary of the Borrowers and the transactions contemplated hereby shall Guarantors certifying among other things, that the Borrowers' and Guarantors' Board of Directors have been approved met and adopted have adopted, approved, consented to and ratified resolutions which authorize the execution, delivery and performance by Borrowers of this Amendment, and the requisite vote Guarantors of the stockholders of Ratification, and each other document, instrument and agreement executed in connection with or relating to the Company under applicable law Agreement, this Amendment or the Ratification (hereinafter individually referred to as a "Loan Document" and applicable listing requirementscollectively referred to as the "Loan Documents");
(b) the shares of Parent Common Stock issuable The representations and warranties contained herein, in the Merger Agreement, as amended hereby, and/or in each other Loan Document shall have been authorized for listing be true and correct as of the date hereof, as if made on Nasdaq upon official notice of issuancethe date hereof;
(c) the waiting period applicable to the consummation No Event of the Merger under the HSR Act Default shall have expired occurred and be continuing and no Default shall exist, unless such Event of Default or Default has been terminated;specifically waived in writing by Agent; and
(d) the Registration Statement shall have become effective All corporate proceedings taken in accordance connection with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, by this Amendment and all consents from lenders required to consummate the Mergerdocuments, instruments and other legal matters incident thereto, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvalsAgent.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16.
Appears in 1 contract
Sources: Loan and Security Agreement (Pioneer Companies Inc)
Conditions. SECTION 8.1 Conditions 4.1 The sale and purchase of the Sale Shares is conditional upon:
4.1.1 the Purchaser notifying the Vendors' Solicitors in writing that it is satisfied in reliance on the Warranties and upon inspection and investigation as to Each Party's Obligation :-
4.1.1.1 the financial, contractual, taxation and trading positions of the Companies;
4.1.1.2 the title of the Companies to Effect their respective assets; and
4.1.1.3 the Merger. Unless waived by results of its searches and the parties, the respective obligations of each party replies to effect the Merger shall be subject its enquiries in regard to the fulfillment at or prior to the Closing Date of the following conditions:
(a) this Agreement Metro-Link Properties and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementsHope Light Properties;
4.1.2 all necessary consents being granted by third parties (bincluding governmental or official authorities) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule regulation or regulation shall have decision which would prohibit, restrict or materially delay the sale and purchase of the Sale Shares or the operation of the Companies after Completion having been enactedproposed, enacted or taken by any state governmental or federal government official authority;
4.1.3 all necessary consents being granted by any landlord or governmental agency in other reversioner (if any) to the United States which would prevent Metro-Link Leases and the consummation Hope Light Leases where the sale and purchase of the Merger Sale Shares would breach or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required be deemed to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16breach any such lease; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇4.1.4 Loh ▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel duly executing the Employment Agreement.
4.2 The Purchaser may waive all or any of such conditions at any time by notice in writing to the Company, in form and substance reasonably satisfactory Vendors' Solicitors.
4.3 The Vendors shall use their best endeavours to procure the Company, effective as fulfilment of the Closing Date and based Conditions on representations or before the Completion Date.
4.4 In the event that any of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion Conditions shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date fulfilled (or such other date reasonably acceptable waived pursuant to the CompanyClause 4.2) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time Completion Date then the Purchaser shall not be bound to proceed with the purchase of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date Sale Shares and the representations and warranties of the Company contained in this Agreement shall cease to be true of any effect except Clauses 1, 10, 11, 12, 13.1 to 13.5, 14 and correct 15 which shall remain in all respects force and save in respect of claims arising out of any antecedent breach of this Agreement.
4.5 In the event that the Purchaser shall give notice in writing of satisfaction of, or shall waive, the conditions contained in Clause 4.1.1, Clause 4.1.2, Clause 4.1.3 and Clause 4.1.4 such notice or waiver shall not imply that the Purchaser is not relying on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the CompanyWarranties but rather only that it is prepared, in form reliance upon the Warranties and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion such comfort, if any, as it has taken from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parentits investigations, to proceed with the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16transaction.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Asia Online LTD)
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be subject Notwithstanding anything to the fulfillment at or prior contrary set forth herein, a Shareholder will not be required to comply with Section 5.1 in connection with any proposed Change of Control Transaction (the Closing Date of the following conditions“Proposed Sale”), unless:
(a) this Agreement any representations and warranties to be made by such Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the transactions contemplated hereby shall ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Shareholder holds all right, title and interest in and to the Shares such Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Shareholder in connection with the transaction have been approved and adopted duly authorized, if applicable, (iii) the documents to be entered into by the requisite vote Shareholder have been duly executed by the Shareholder and delivered to the acquirer and are enforceable (subject to customary limitations) against the Shareholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into by the Shareholder in connection with the transaction, nor the performance of the stockholders Shareholder’s obligations thereunder, will cause a breach or violation of the Company under applicable terms of the Shareholder’s constating documents (if applicable), any agreement to which the Shareholder is a party, or any law and applicable listing requirementsor judgment, order or decree of any court or governmental agency that applies to the Shareholder;
(b) the shares Shareholder is not liable for the breach of Parent Common Stock issuable any representation, warranty or covenant made by any other person (except for an Affiliate or Eligible Transferee of such Shareholder) in connection with the Merger shall have been authorized for listing on Nasdaq upon official notice Proposed Sale, other than the Corporation (except to the extent that funds may be paid out of issuancean escrow established to cover breach of representations, warranties and covenants of the Corporation as well as breach by any Shareholder of any of identical representations, warranties and covenants provided by all Shareholders);
(c) liability shall be limited to such Shareholder’s applicable share (determined based on the waiting period applicable respective proceeds payable to each Shareholder in connection with such Proposed Sale) of a negotiated aggregate indemnification amount that applies equally to all Shareholders but that in no event exceeds the amount of consideration otherwise payable to such Shareholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Shareholder, the liability for which need not be limited as to such Shareholder; and
(d) upon the consummation of the Merger under Proposed Sale, each Shareholder will receive the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective same form of consideration for their Shares and same amount of consideration per Share as is received by other Shareholders in accordance with the provisions respect of the Securities Acttheir Shares, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or if any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered Shareholder is given a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify choice as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay form of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required consideration to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the MergerProposed Sale, except to all Shareholders will be given the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16same option.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations The effectiveness of each party to effect the Merger shall be this Amendment is subject to the fulfillment at or prior to the Closing Date satisfaction of the following conditionsconditions precedent:
(a) this Agreement the Agent and the transactions contemplated hereby Lenders shall have been approved received this Amendment and adopted a Note properly executed by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirementsLoan Parties;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent the Loan Parties set forth herein and Subsidiary contained in this Agreement the Loan Documents shall be true and correct in all material respects on and as respects, (ii) no Event of Default or any other event which, upon the lapse of time, service of notice, or both, which would constitute an Event of Default under any of the date made Loan Documents, shall have occurred and on be continuing, and as (iii) the Loan Parties shall be in compliance with the Loan Agreement and the other Loan Documents; and the Loan Parties shall have certified the foregoing matters to the Agent and the Lenders, in the case of the Closing Date as if made at preceding clauses (i) through (iii) but both before and as after giving pro forma effect to the making of such date, the Second Amendment Term Loan;
(c) the Agent and the Company Lenders shall have received a certificate of from the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that Loan Parties attaching (i) resolutions authorizing this Amendment and the Merger of Subsidiary with transactions contemplated thereby, and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parenta certificate of good standing or its equivalent from such Loan Party’s jurisdiction of incorporation or formation, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional sharesapplicable, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, stating that there shall have been no changes that haveto the governing and organizational and incumbency information since the Agreement Date, or attaching true and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation accurate copies of the Merger amended governing and the transactions contemplated hereby shall have been obtained organizational documents and be incumbency information in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the CompanyAmendment;
(d) the Affiliate Agreements Agent and the Lenders shall have received (i) all other documents, information and reports required or requested to be executed and/or delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;the Loan Parties under any provision of this Amendment or any other Loan Documents, and (ii) payment of all reasonable fees and expenses (including the closing fee and the reimbursement of all other reasonable out-of-pocket fees and expenses of the Agent and the Lenders); and
(e) since in addition to the amounts set forth in Section 4(d) above, the Borrower shall have paid to the Agent, for its own account, on or prior to the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted hereof a fee in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation amount of $2,500 in connection with the Merger and the transactions amendments contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16herein.
Appears in 1 contract
Sources: Loan and Security Agreement (GTY Technology Holdings Inc.)
Conditions. SECTION 8.1 Conditions 3.1 Subject to Each Party's Obligation to Effect clause 3.2, Completion is conditional upon the Merger. Unless waived by the parties, the respective obligations fulfilment of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditionsConditions as follows:
(a) any waiting period applicable to the transfer of Shares contemplated by this Agreement agreement under the HSR Act having been terminated or expired; and
(b) FAS Approval of the transfer of Shares contemplated by this agreement.
3.2 The Conditions contained in clause 3.1 may only be waived by both the Seller and the transactions contemplated hereby shall have been approved and adopted by Buyer agreeing to such waiver in writing.
3.3 The Buyer undertakes to use its best endeavours to procure the requisite vote fulfilment of the stockholders Conditions set out in clause 3.1 as soon as possible and in any event by no later than the Conditions Long Stop Date.
3.4 Each of the Company parties agrees that it shall, and the Seller agrees that upon a request from the Buyer it shall procure that the Target Group shall, promptly co-operate with, and provide all necessary information and other assistance reasonably required by such other party in connection with the satisfaction of the Conditions, including for the purposes of the provision of such information to any Governmental Authority as shall be necessary in connection with the satisfaction of the Conditions.
3.5 Without prejudice to the generality of the Buyer’s obligations under applicable law clauses 3.3 and applicable listing requirements3.4, subject to clause 3.6, the Buyer shall be primarily responsible for preparing the clearance applications and filings contemplated or required to be made to obtain all consents, approvals or authorisations of any Governmental Authority which are required in order to satisfy or fulfil the Conditions and shall, as soon as possible after the date of this agreement, take all steps necessary to obtain such consents, approvals or authorisations including:
(a) preparing and submitting to all relevant Governmental Authorities as soon as practicable after the date of this agreement and in any event within five Business Days of the date hereof, all documents, registrations, statements, petitions, filings, applications and other information which are to be prepared and filed in order to satisfy the Conditions and making payment of any filing fees assessed by any Governmental Authorities in connection therewith;
(b) not entering into (and procuring that no member of the shares Buyer’s Group enters into) any other agreement or arrangement which may delay, impede or prejudice the fulfilment of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuanceConditions;
(c) as soon as reasonably practicable providing the waiting period applicable Seller with notification (and, where in writing, a copy) of any material communication (whether written or oral) received from any Governmental Authority; and
(d) providing the Seller (or advisers nominated by the Seller) with:
(i) a reasonable opportunity to review and comment on any drafts of notifications and communications proposed to be submitted to any Governmental Authority before they are so submitted;
(ii) the opportunity to participate in all material meetings, conference calls or other discussions relating to the consummation satisfaction of the Merger Conditions (save to the extent that (1) such Governmental Authority expressly requests that the Seller shall not attend or be represented, or (2) such meetings or discussions are of a confidential nature to the Buyer); and
(iii) final submissions to any Governmental Authority as soon as reasonably practicable after being sent (save that business secrets of the Buyer and other confidential material may be redacted to the extent the Buyer acts reasonably in identifying such material for redaction); provided, further, however, that Buyer shall be solely responsible for the content of any substantive communications with any Governmental Authority to the extent it relates to the Buyer (and not the Seller’s Group or Target Group).
3.6 The Seller shall comply with clauses 3.5(a) (excluding in relation to obtaining the FAS Approval), 3.5(b) (excluding in relation to obtaining the FAS Approval), 3.5(c) and 3.5(d) mutatis mutandis in relation to its filing of its clearance application under the HSR Act and to obtain the FAS Approval as if references to the Buyer were references to the Seller (and vice versa).
3.7 Notwithstanding any other provision of this agreement, in complying with its obligations pursuant to this clause 3, the Buyer shall have expired not in any circumstances (x) be required to restructure or divest the activities of any member of the Buyer’s Group or its own business, activities or assets or (y) offer or agree to provide any undertaking or commitment that relates to any member of the Target Group or any of their respective business, activities or assets.
3.8 The Buyer shall keep the Seller advised of the progress towards the satisfaction of the Conditions and as soon as reasonably practicable after becoming aware of a fact or circumstance that might prevent the Conditions being satisfied each party shall inform the other of such fact or circumstance.
3.9 If all of the Conditions (save for those compliance with which has been terminated;
(d) the Registration Statement shall have become effective waived in accordance with the provisions terms of this agreement) have not been fulfilled on or before the Securities Act, and no stop order suspending such effectiveness Conditions Long Stop Date this agreement shall have been issued and remain in terminate with effect and no proceeding for from that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvalsdate.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at 3.10 If this agreement terminates in accordance with clause 3.9 or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed is terminated in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary accordance with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, clause 5.5 then the obligations of Parent the parties under this agreement, other than under this clause 3.10 and Subsidiary under clauses 10, 11, 12 and 17 to effect 25 (inclusive) shall automatically terminate save that the Merger shall be subject to rights and liabilities of the fulfillment at or parties which have accrued prior to the Effective Time of the additional following conditions:
(a) the Company termination shall have performed in all material respects its agreements contained in this Agreement required continue to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, effective as of the Closing Date, substantially in the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16subsist.
Appears in 1 contract
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. Unless waived by the parties, the respective obligations of each party to effect the Merger shall be The present Lease is made subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of the Company under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger shall have been authorized for listing on Nasdaq upon official notice of issuance;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, order or decree lifted);
(f) no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, stating that the Merger will qualify as a pooling-of-interests transaction under APB 16; and
(i) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or the Company and lessors of material leases shall have been obtained and be in effect at the Effective Time; provided, however, that the failure to obtain such consents or approvals shall -------- ------- not be due to the default or delay of the party responsible for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment whereof the parties hereto respectively oblige themselves, namely:
4.1 That the Lessee shall pay the rent at or prior the time and in the manner aforesaid, such rent to be made payable to the Closing Date Lessor, without the necessity of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made demand therefor at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effect;
(b) the Company shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇ ▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, in form and substance reasonably satisfactory to the Company, effective as of the Closing Date and based on representations of the Company and Parent, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------
(c) the Company shall have received an opinion or opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, special counsel to Parent and Subsidiary, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Company, in form and substance reasonably satisfactory to the Company, stating that the Company has not taken any action that would affect the ability to account for the Merger as a pooling-of-interests transaction under APB 16; and
(i) The parent shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), a form of which is attached hereto as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel or at such other place as the Lessor may from time to time designate in writing to the CompanyLessee.
4.2 The Lessee shall assume and be responsible for all repairs and maintenance to the Building and the Parking Lot, effective as of whatever nature, other than the repairs and the work described in Section 7 hereof which shall be the responsibility of the Closing Date, substantially in Lessor. At the form set forth in Exhibit 8.3(b) attached hereto; --------------
(c) Parent shall have received "comfort" letters in customary form and substance reasonably satisfactory to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date expiration of the Proxy StatementTerm, the effective date Lessee shall remove its goods and effects and shall peaceably yield up to the Lessor the Premises in as good order and condition as when delivered to it at the beginning of the Registration Statement Term, excepting ordinary wear and tear and damages by fire. In the event the Lessee fails to commence any repairs which it is required to make within thirty (30) days of written notification of such necessary repairs by the Lessor, and fails to complete them within a reasonable time, then the Lessor may make such repairs, and the Closing Date (or such other date reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related cost thereof shall be repaid forthwith to the Company;
(d) Lessor by the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that haveLessee, and no event Lessee shall pay interest, if any, on Lessor's reasonable borrowing costs on all sums so advanced by Lessor.
4.3 That the Lessee shall, at its own expense, heat the Premises to a reasonable degree of heat and protect from frost all the water and drain pipes and valves, water closets, sinks and accessories thereof in and about the Premises, and keep the same free from all uncleanliness or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for obstruction that might prevent the consummation proper working of the Merger and same.
4.4 The Lessee may not assign this Lease or sub-lease the transactions contemplated hereby whole or any part of the Premises or the Parking Lot without the prior written approval of the Lessor, which approval shall have been obtained and not be in effect at the Closing Datewithheld without a serious reason, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair which must be communicated to the value to Parent Lessee within fifteen (15) days of the Merger;
Lessee's request (g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16"REQUEST").
Appears in 1 contract
Sources: Lease Agreement (Hasbro Inc)
Conditions. SECTION 8.1 Conditions The obligations of the Underwriters hereunder as to Each Party's Obligation the Offer Shares to Effect be delivered at each Time of Delivery, shall be subject, in their discretion, to the Merger. Unless waived by condition that all representations and warranties and other statements of the partiesCompany and the Selling Shareholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and each of the Selling Shareholders shall have performed all of their respective obligations of each party hereunder theretofore to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of performed, and the following additional conditions:
(a) this Agreement and the transactions contemplated hereby The Prospectus shall have been approved and adopted filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the requisite vote of rules and regulations under the stockholders of Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger Act shall have been authorized filed with the Commission within the applicable time period prescribed for listing on Nasdaq such filing by Rule 433; if the Company has elected to rely upon official notice of issuance;
(cRule 462(b) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(dAct, the Rule 462(b) the Registration Statement shall have become effective in accordance with by 10:00 P.M., Washington, D.C. time, on the provisions date of the Securities Act, and this Agreement; no stop order suspending such the effectiveness of the Registration Statement or any part thereof shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted initiated or threatened by the SEC Commission; no stop order suspending or preventing the use of the Prospectus or any state regulatory authoritiesIssuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction;
(eb) no preliminary or permanent injunction or other order or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunctionSkadden, order or decree lifted);
(f) no action shall have been takenArps, and no statuteSlate, rule or regulation shall have been enacted, by any state or federal government or governmental agency in the United States which would prevent the consummation of the Merger or make the consummation of the Merger illegal;
(g) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby, and all consents from lenders required to consummate the Merger, shall have been obtained and be in effect at the Effective Time;
(h) Coopers & ▇M▇▇▇▇▇▇ L.L.P.& F▇▇▇ LLP, certified public accountants US special counsel for Parentthe Underwriters, shall have delivered a furnished to you their legal opinion and disclosure letter, dated the Closing Date, addressed to Parentsuch Time of Delivery, in form and substance reasonably satisfactory to Parentyou, stating that with respect to the Merger will qualify matters covered in paragraphs (e) and (g) of Annex 3-B hereto (to the extent applicable), as a pooling-of-interests transaction under APB 16; andwell as such other related matters as you may reasonably request, and such counsel shall have received such documents and information as they reasonably may request to enable them to opine upon such matters;
(ic) all required material consents and approvals of lenders who have advanced $5,000,000 or more to Parent or Naschitz, B▇▇▇▇▇▇ & Co., Israeli counsel for the Company and lessors of material leases Underwriters, shall have been obtained furnished to you their legal opinion and be disclosure letter, dated such Time of Delivery, in effect at the Effective Time; provided, however, that the failure form and substance satisfactory to obtain such consents or approvals shall -------- ------- not be due you with respect to the default or delay matters covered in paragraphs (a), (b), (g), (k) and (q) of the party responsible Annex 3-A hereto, as well as such other related matters as you may reasonably request, and such counsel shall have received such documents and information as they reasonably may request to enable them to opine upon such matters;
(d) Goldfarb, Levy, Eran, Meiri & Co., Israeli counsel for obtaining such consents and approvals.
SECTION 8.2 Conditions to Obligation of the Company to Effect the Merger. Unless waived by the Company, the obligation of the Company to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed furnished to you their legal opinion and disclosure letter, dated such Time of Delivery, in all material respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and form attached as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board and Chief Executive Officer, the President or a Vice President of Parent and of the President and Chief Executive Officer or a Vice President of Subsidiary to that effectAnnex 3-A hereto;
(be) the Company shall have received an opinion of ▇▇D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇▇ LLP, special US counsel to for the Company, in form shall have furnished to you their legal opinion and substance reasonably satisfactory to the Companydisclosure letter, effective as dated such Time of the Closing Date and based on representations of the Company and ParentDelivery, to the effect that (i) the Merger of Subsidiary with and into the Company pursuant to the Merger Agreement and applicable state law will be treated for United States federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) Parent, Subsidiary and Company will each be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) the stockholders of the Company will not recognize gain or loss as a result of the Merger, except to the extent such stockholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect, substantially in the form of Exhibit 8.2(b); --------------attached as Annex 3-B hereto;
(cf) the Company shall have received an The opinion or opinions from ▇▇▇of [Y▇▇▇▇ ▇▇▇▇▇ & Co.], dated such Time of Delivery, in form and in substance satisfactory to you, shall have been furnished to you, to the effect set forth in Annex 3-D hereto;
(g) The respective local and US counsels for each of the Selling Shareholders, as indicated in Schedule II hereto, each shall have furnished to you their written opinions with respect to each of the Selling Shareholders for whom they are acting as counsel, dated such Time of Delivery, in the forms attached as Annex 3-E and Annex 3-F, respectively, hereto;
(h) On the date of the Prospectus, on the effective date of any post effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Somekh C▇▇▇▇▇▇▇ & Ingersoll, special counsel Member Firm of KPMG International, shall have furnished to Parent and Subsidiaryyou a letter or letters, dated the Closing Date, reasonably satisfactory to the Company substantially in the form set forth in Exhibit 8.2(c) attached hereto; --------------
(d) the Company shall have received "comfort" letters in customary form from Coopers & ▇▇▇▇▇▇▇ L.L.P., certified public accountants for Parent and Subsidiary, dated the date respective dates of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date reasonably acceptable to the Company) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to Parent;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Parent Material Adverse Effect;
(f) all governmental waivers, consents, orders, and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) the Company shall have received from ▇▇▇▇▇▇▇▇▇ & Company, Inc. (or other nationally recognized investment banking firm reasonably acceptable to Parent) an opinion, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the stockholders of the Company, to the effect that the consideration to be received by the stockholders of the Company in the Merger is fair, from a financial point of view, to the holders of Company Common Stock, and such opinion shall not have been withdrawn;
(h) Deloitte & Touche LLP, independent public accountants for the Company, shall have delivered a letter, dated the Closing Date, addressed to the Companydelivery thereof, in form and substance reasonably satisfactory to you;
(i) On or before the First Time of Delivery, you shall have received duly executed Lock-Up Agreements from each of the persons and entities set forth in Annex 4 hereto, substantially in the form provided in Annex 4 hereto;
(j) At such Time of Delivery, you shall have received such other resolutions, consents, authorities and documents relating to the sale of the Offer Shares as you may reasonably require;
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute, legal dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus and the Prospectus; and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the share capital or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus and the Prospectus, the effect of which, in any such case described in clauses (i) or (ii), is, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Offer Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(l) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on the Exchange or the Tel Aviv Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State or Israeli authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States or Israel; (iv) the outbreak or escalation of hostilities involving the United States or the significant outbreak or escalation of hostilities involving Israel or the declaration by the United States or Israel of a national emergency or war (v) the occurrence of any other calamity or crisis or any change in financial, stating political or economic conditions in the United States, Israel, or elsewhere, if the effect of any such event specified in clause (iv); or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Offer Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(m) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any reputable rating organization and (ii) no such rating organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company has not taken any action that would affect Company’s debt securities;
(n) The Offer Shares to be sold at such Time of Delivery shall have been approved for listing on the ability Exchange, subject to account for the Merger as a pooling-of-interests transaction under APB 16notice of issuance; and
(io) The parent Company and the Selling Shareholders shall have entered into an employment agreement with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇")furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Shareholders, a form of which is attached hereto respectively, satisfactory to you as Exhibit ------- 8.2(i). ------
SECTION 8.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time accuracy of the additional following conditions:
(a) the Company shall have performed in all material respects its agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects on and as of the date made and on and as of the Closing Date as if made Selling Shareholders, respectively, herein at and as of such dateTime of Delivery, and Parent shall have received a Certificate of the President and Chief Executive Officer or of a Vice President of the Company, in form and substance reasonably satisfactory to Parent to that effect;
(b) Parent shall have received an opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel as to the Companyperformance by the Company and the Selling Shareholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, effective as of to the Closing Date, substantially in the form matters set forth in Exhibit 8.3(bsubsections (a) attached hereto; --------------
and (cl) Parent shall have received "comfort" letters in customary form of this Section 8, and substance reasonably satisfactory as to Parent from Deloitte & Touche LLP, certified public accountants for the Company, dated the date of the Proxy Statement, the effective date of the Registration Statement and the Closing Date (or such other date matters as you may reasonably acceptable to Parent) with respect to certain financial statements and other financial information included in the Registration Statement and any subsequent changes in specified balance sheet and income statement items, including total assets, working capital, total stockholders' equity, total revenues and the total and per share amounts of net income related to the Company;
(d) the Affiliate Agreements required to be delivered to Parent pursuant to Section 7.4 shall have been furnished as required by Section 7.4;
(e) since the date hereof, there shall have been no changes that have, and no event or events shall have occurred which have resulted in or have, a Company Material Adverse Effect;
(f) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Closing Date, and no governmental authority shall have promulgated any statute, rule or regulation which, when taken together with all such promulgations, would materially impair the value to Parent of the Merger;
(g) Parent shall have received from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (or other nationally recognized investment banking firm reasonably acceptable to the Parent) an opinion reasonably acceptable to the Parent, dated as of the date on which the Proxy Statement and Prospectus is first distributed to the shareholders of Parent, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent's stockholders, and such opinion shall not have been withdrawn;
(h) the Company shall have delivered to Parent its audited consolidated financial statements for the year ended December 31, 1996, together with an unqualified opinion from Deloitte & Touche LLP regarding such financial statements, which financial statements shall reflect earnings which are not materially less than the average of the published projections of the securities analysts' which regularly follow the Company and which financial statements shall reflect all normal, recurring adjustments necessary to fairly present the Company's results from operations or financial condition; and
(i) Coopers & ▇▇▇▇▇▇▇ L.L.P., public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent stating that the Merger will qualify as a pooling-of-interests transaction under APB 16request.
Appears in 1 contract