Additional Conditions Precedent to the Obligations of the Company. (a) The obligations of the Company to complete the Transaction shall also be subject to the following conditions precedent (each of which is for the exclusive benefit of the Company and may be waived by the Company): (i) all covenants of Symmetry and Acquisitionco under this Agreement to be performed on or before the Closing Time shall have been duly performed by them in all material respects, and the Company shall have received a certificate of each of Symmetry and Acquisitionco addressed to the Company and dated the Effective Date, in the case of Acquisitionco signed on behalf of Acquisitionco by two senior executive officers of Acquisitionco (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on Symmetry’s behalf and without personal liability), confirming the same as at the Effective Date; (ii) (A) the representations and warranties of Symmetry and Acquisitionco that are qualified by references to materiality or Material Adverse Effect shall be true and correct; and (B) the representations and warranties of Symmetry and Acquisitionco not so qualified shall be true and correct in all material respects, in each case as of the date hereof and as of the Closing Time as if made on and as of such time; and the Company shall have received a certificate of Symmetry and Acquisitionco addressed to the Company and dated the Effective Date, signed on behalf of Acquisitionco by two senior executive officers of Acquisitionco (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on Symmetry’s behalf and without personal liability), confirming the same as at the Effective Date; (iii) the board of directors of Symmetry and Acquisitionco shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Symmetry and Acquisitionco to permit the consummation of the Transaction; and (iv) Acquisitionco shall have deposited the aggregate cash purchase price payable under the Transaction for the Company Shares with the Depositary or the Company, as applicable. (b) The Company may not rely on the failure to satisfy any of the conditions precedent in Section 5.1 or Section 5.3 if the condition precedent was not satisfied solely as a result of a material default by the Company in complying with its obligations in this Agreement.
Appears in 2 contracts
Samples: Arrangement Agreement (Symmetry Holdings Inc), Arrangement Agreement (Symmetry Holdings Inc)
Additional Conditions Precedent to the Obligations of the Company. (a) The obligations of the Company to complete the Transaction Transactions shall also be subject to the following conditions precedent (each of which is for the exclusive benefit of the Company and may be waived by the Company):
(i1) all covenants of Symmetry and Acquisitionco Parent under this Agreement to be performed on or before the Closing Effective Time shall have been duly performed by them Parent in all material respects, and the Company shall have received a certificate of each of Symmetry and Acquisitionco Parent addressed to the Company and dated the Effective Date, in the case of Acquisitionco signed on behalf of Acquisitionco Parent by two senior executive officers of Acquisitionco Parent (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on SymmetryParent’s behalf and without personal liability), confirming the same as at the Effective Date;
(ii2) (A) the all representations and warranties of Symmetry and Acquisitionco that are qualified by references to materiality or Material Adverse Effect Parent under this Agreement shall be true and correct; and (B) the representations and warranties of Symmetry and Acquisitionco not so qualified shall be have been true and correct in all material respects, in each case as of on the date hereof of this Agreement and as of the Closing Effective Time as if made on and as of such time; time (except to the extent such representations and warranties speak solely as of an earlier date, in which event such representations and warranties shall be true and correct to such extent as of such earlier date) and the Company shall have received a certificate of Symmetry and Acquisitionco Parent addressed to the Company and dated the Effective Date, signed on behalf of Acquisitionco Parent by two senior executive officers of Acquisitionco Parent (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on SymmetryParent’s behalf and without personal liability), confirming the same as at the Effective Date;
(iii) the board of directors of Symmetry and Acquisitionco shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Symmetry and Acquisitionco to permit the consummation of the Transaction; and
(iv3) Acquisitionco Parent or Acquisition Sub shall have deposited with the aggregate cash purchase price payable under Transfer Agent in escrow at or prior to the Transaction time of filing of the Articles of Arrangement the funds required to effect payment in full for all of the Shares to be acquired pursuant to the Arrangement and the Transfer Agent shall have confirmed to the Company Shares with receipt of these funds. The funds shall be held by the Depositary Transfer Agent in an escrow or restricted account agreement among Parent, Parents’ lead lenders, the CompanyCompany and the Transfer Agent, reasonably satisfactory to all parties thereto, pursuant to which, among other things, the Transfer Agent shall be irrevocably instructed to release the funds (less any interest earned thereon) to the Transfer Agent, in its capacity as applicable.
(b) The Company may not rely on the failure to satisfy any of the conditions precedent in Section 5.1 or Section 5.3 if the condition precedent was not satisfied solely as a result of a material default depositary, upon presentment by the Company in complying with its obligations in this Agreementto the Transfer Agent of a copy of the Certificate of Arrangement.
Appears in 1 contract
Samples: Arrangement Agreement (Intertape Polymer Group Inc)
Additional Conditions Precedent to the Obligations of the Company. (a) The obligations of the Company to complete the Transaction transactions contemplated by this Agreement shall also be subject to the fulfillment or waiver of the following conditions precedent (each of which is for the exclusive benefit of the Company and may be waived by the Company):
(ia) all covenants of Symmetry Parent and Acquisitionco Acquireco under this Agreement to be performed on or before the Closing Effective Time shall have been duly performed by them Parent and Acquireco in all material respects, respects and the Company shall have received a certificate of each of Symmetry Parent and Acquisitionco Acquireco addressed to the Company and dated the Effective Date, in the case of Acquisitionco signed on behalf of Acquisitionco Parent and Acquireco by two a senior executive officers officer of Acquisitionco Parent and Acquireco (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on Symmetry’s behalf Parent and Acquireco and without personal liability), confirming the same as at the Effective Date;
(ii) (Ab) the representations and warranties of Symmetry Parent and Acquisitionco that are qualified by references to materiality or Material Adverse Effect shall be true and correct; and (B) the representations and warranties of Symmetry and Acquisitionco not so qualified Acquireco set forth in this Agreement shall be true and correct in all material respects, respects without regard to any materiality qualifications contained in each case them as of the date hereof and as of the Closing Effective Time as if though made on and as of the Effective Time, except (i) to the extent that such time; failure to be true and correct would not have a material adverse effect on the ability of Acquireco to consummate the Arrangement and perform its obligations hereunder, and (ii) for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date and the Company shall have received a certificate of Symmetry Parent and Acquisitionco Acquireco addressed to the Company and dated the Effective Date, signed on behalf of Acquisitionco Parent and Acquireco by two a senior executive officers officer of Acquisitionco Parent and Acquireco (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on Symmetry’s behalf Parent and Acquireco and without personal liability), confirming the same as at the Effective Date;
(iii) the board of directors of Symmetry and Acquisitionco shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Symmetry and Acquisitionco to permit the consummation of the Transaction; and
(ivc) Acquisitionco Acquireco shall have deposited or caused to be deposited with the aggregate cash purchase price payable under Depository in escrow, and the Transaction Depositary shall have delivered to the Company a signed receipt acknowledging the receipt of, the funds required (i) to effect payment in full of the Consideration to be paid for the Company Shares with and (ii) to pay the Depositary or Option Amount for the Company, as applicableOptions to be cancelled pursuant to the Arrangement.
(b) The Company may not rely on the failure to satisfy any of the conditions precedent in Section 5.1 or Section 5.3 if the condition precedent was not satisfied solely as a result of a material default by the Company in complying with its obligations in this Agreement.
Appears in 1 contract
Additional Conditions Precedent to the Obligations of the Company. (a) The obligations of the Company to complete the Transaction transactions contemplated by this Agreement, shall also be subject to the fulfillment of each of the following conditions precedent (each of which is for the exclusive benefit of the Company and may be waived by the Company):
(ia) all covenants of Symmetry and Acquisitionco the Acquiror under this Agreement to be performed on or before the Closing Effective Time which have not been waived by the Company shall have been duly performed by them the Acquiror in all material respects, and the Company shall have received a certificate of each the Acquiror, addressed to Company and dated the Effective Time, signed on behalf of Symmetry the Acquiror by two executive officers of the Acquiror (on Acquiror’s behalf and Acquisitionco without personal liability), confirming the same as of the Effective Date;
(b) all representations and warranties of the Acquiror set forth in this Agreement that are qualified by the expression “Material Adverse Effect” shall be true and correct in all respects, as though made on and as of the Effective Time (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date), and all other representations and warranties made by the Acquiror in this Agreement that are not so qualified shall be true and correct in all material respects as of the Effective Date as if made on and as of such date (except for representations and warranties made as of a specified date the accuracy of which shall be determined as of that specified date); and the Company shall have received a certificate of the Acquiror, addressed to the Company and dated the Effective DateTime, in the case of Acquisitionco signed on behalf of Acquisitionco the Acquiror by two senior executive officers of Acquisitionco the Acquiror (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on SymmetryAcquiror’s behalf and without personal liability), confirming the same as at the Effective Date;
(iic) (A) since the representations and warranties date of Symmetry and Acquisitionco that are qualified by references this Agreement, there shall not have occurred any event, occurrence, development or circumstance that, individually or in the aggregate has had or would reasonably be expected to materiality or have a Material Adverse Effect on Acquiror;
(d) no action, suit or proceeding, shall be true have been taken under any applicable Law or by any Governmental Entity, and correct; and no Law, policy, decision or directive (Bhaving the force of Law) the representations and warranties of Symmetry and Acquisitionco not so qualified shall be true and correct in all material respectshave been enacted, promulgated, amended or applied, in each case as (i) to enjoin or prohibit the Plan of the date hereof and as of the Closing Time as if made on and as of such time; and the Company shall have received a certificate of Symmetry and Acquisitionco addressed to the Company and dated the Effective Date, signed on behalf of Acquisitionco by two senior executive officers of Acquisitionco (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on Symmetry’s behalf and without personal liability), confirming the same as at the Effective Date;
(iii) the board of directors of Symmetry and Acquisitionco shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Symmetry and Acquisitionco to permit the consummation of the Transaction; and
(iv) Acquisitionco shall have deposited the aggregate cash purchase price payable under the Transaction for the Company Shares with the Depositary Arrangement or the Company, as applicable.
(b) The Company may not rely on the failure to satisfy any of the conditions precedent in Section 5.1 or Section 5.3 if the condition precedent was not satisfied solely as a result of a material default transactions contemplated by the Company in complying with its obligations in this Agreement., (ii) which would render this Agreement unenforceable in any way or frustrate the purpose and intent hereof or thereof, or
Appears in 1 contract
Samples: Arrangement Agreement
Additional Conditions Precedent to the Obligations of the Company. (a) The obligations of the Company to complete the Transaction Arrangement shall also be subject to fulfillment of each of the following conditions precedent (each of which is for the exclusive benefit of the Company and may be waived by the Company):
(ia) all covenants of Symmetry Parent and Acquisitionco Acquisition Sub under this Agreement to be performed on or before the Closing Time Effective Date shall have been duly performed by them Parent and Acquisition Sub in all material respects, and the Company shall have received a certificate of each of Symmetry and Acquisitionco Parent addressed to the Company and dated the Effective Date, in the case of Acquisitionco signed on behalf of Acquisitionco Parent by two a senior executive officers officer of Acquisitionco Parent (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on SymmetryParent’s behalf and without personal liability), confirming the same as at the Effective Date;
(iib) (A) the all representations and warranties of Symmetry Parent and Acquisitionco that are qualified by references to materiality or Material Adverse Effect Acquisition Sub under this Agreement shall be true and correct; and (B) the representations and warranties of Symmetry and Acquisitionco not so qualified shall be have been true and correct in all material respects, in each case (without giving effect to any materiality qualifiers contained therein) as of the date hereof and as of the Closing Time Effective Date as if made on and as of such time; time (except to the extent that such failures to be true and correct would not have a material adverse effect on the ability of the Parent and Acquisition Sub to close the Transactions and perform their obligations hereunder and except such representations and warranties that speak solely as of an earlier date, in which event such representations and warranties shall be true and correct (subject to the exception in the first parenthetical of this Section 6.03(b)) to such extent as of such earlier date) and the Company shall have received a certificate of Symmetry and Acquisitionco Parent addressed to the Company and dated the Effective Date, signed on behalf of Acquisitionco Parent by two a senior executive officers officer of Acquisitionco Parent (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on SymmetryParent’s behalf and without personal liability), confirming the same as at the Effective Date;
(iii) the board of directors of Symmetry and Acquisitionco shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Symmetry and Acquisitionco to permit the consummation of the Transaction; and
(ivc) Acquisitionco Acquisition Sub shall have deposited the aggregate cash purchase price payable under the Transaction for the Company Shares with the Depositary in escrow at or prior to the time of filing of the Articles of Arrangement the funds required to effect payment in full for all of the Securities to be acquired pursuant to the Arrangement and the Depositary shall have confirmed to the Company receipt of these funds. Such funds may be invested by the Depositary as directed by Acquisition Sub or, after the Effective Time, the Company; provided that (i) no such investment or losses thereon shall affect the Purchase Price per Common Share and following any losses Parent shall promptly provide additional funds to the Depositary in the amount of such losses and (ii) such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations with a Credit Rating of “P-1” or “A-1” or better by Standard & Poor’s Ratings Group or Mxxxx’x Investors Service, Inc., respectively. Any interest or income produced by such investments will be payable to the Company or Acquisition Sub, as applicableParent directs.
(b) The Company may not rely on the failure to satisfy any of the conditions precedent in Section 5.1 or Section 5.3 if the condition precedent was not satisfied solely as a result of a material default by the Company in complying with its obligations in this Agreement.
Appears in 1 contract
Samples: Arrangement Agreement (Novelis Inc.)
Additional Conditions Precedent to the Obligations of the Company. (a1) The obligations of the Company to complete the Transaction shall also be subject to the following conditions precedent (each of which is for the exclusive benefit of the Company and may be waived by the Company):
(ia) all covenants of Symmetry and Acquisitionco under this Agreement to be performed on or before the Closing Effective Time shall have been duly performed by them Acquisitionco in all material respects, and the Company shall have received a certificate of each of Symmetry and Acquisitionco addressed to the Company and dated the Effective Date, in the case of Acquisitionco signed on behalf of Acquisitionco by two senior executive officers of Acquisitionco (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on Symmetry’s behalf and without personal liability), confirming the same as at the Effective Date;
(ii) (A) the representations and warranties of Symmetry and Acquisitionco that are qualified by references to materiality or Material Adverse Effect shall be true and correct; and (B) the representations and warranties of Symmetry and Acquisitionco not so qualified shall be true and correct in all material respects, in each case as of the date hereof and as of the Closing Time as if made on and as of such time; and the Company shall have received a certificate of Symmetry and Acquisitionco addressed to the Company and dated the Effective Date, signed on behalf of Acquisitionco by two senior executive officers of Acquisitionco (on Acquisitionco’s behalf and without personal liability), confirming the same as at the Effective Date;
(b) all representations and warranties of Acquisitionco under this Agreement shall have been true and correct on the date hereof;
(c) (i) the representations and warranties of Acquisitionco that are qualified by references to materiality or Material Adverse Effect shall be true and correct; and (ii) the representations and warranties of Acquisitionco not so qualified shall be true and correct in all material respects, in each case as of the case Effective Time as if made on and as of Symmetry such time; and the Company shall have received a certificate of Acquisitionco addressed to the Company and dated the Effective Date, signed on behalf of Symmetry Acquisitionco by two senior executive officers of Symmetry Acquisitionco (on SymmetryAcquisitionco’s behalf and without personal liability), confirming the same as at the Effective Date;
(iiid) the board of directors of Symmetry and Acquisitionco shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Symmetry and Acquisitionco to permit the consummation of the Transaction; and
(ive) Acquisitionco shall have deposited the aggregate cash purchase price payable under the Transaction for the Company Shares and Company Options with the Depositary or the Company, as applicableDepositary.
(b2) The Company may not rely on the failure to satisfy any of the conditions precedent precedents in Section 5.1 or Section 5.3 if the condition precedent was not satisfied solely as a result of a material default by the Company in complying with its obligations in this Agreement.
Appears in 1 contract
Samples: Combination Agreement (Masonite International Corp)
Additional Conditions Precedent to the Obligations of the Company. (a1) The obligations of the Company to complete the Transaction shall also be subject to the following conditions precedent (each of which is for the exclusive benefit of the Company and may be waived by the Company):
(ia) all covenants of Symmetry and Acquisitionco under this Agreement to be performed on or before the Closing Time shall have been duly performed by them Acquisitionco in all material respects, and the Company shall have received a certificate of each of Symmetry and Acquisitionco addressed to the Company and dated the Effective Date, in the case of Acquisitionco signed on behalf of Acquisitionco by two senior executive officers of Acquisitionco (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on Symmetry’s behalf and without personal liability), confirming the same as at the Effective Date;
(ii) (A) the representations and warranties of Symmetry and Acquisitionco that are qualified by references to materiality or Material Adverse Effect shall be true and correct; and (B) the representations and warranties of Symmetry and Acquisitionco not so qualified shall be true and correct in all material respects, in each case as of the date hereof and as of the Closing Time as if made on and as of such time; and the Company shall have received a certificate of Symmetry and Acquisitionco addressed to the Company and dated the Effective Date, signed on behalf of Acquisitionco by two senior executive officers of Acquisitionco (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on Symmetry’s 's behalf and without personal liability), confirming the same as at the Effective Date;
(iiib) all representations and warranties of Acquisitionco under this Agreement shall have been true and correct on December 22, 2004;
(i) the representations and warranties of Acquisitionco that are qualified by references to materiality or Material Adverse Effect shall be true and correct; and (ii) the representations and warranties of Acquisitionco not so qualified shall be true and correct in all material respects, in each case as of the Closing Time as if made on and as of such time; and the Company shall have received a certificate of Acquisitionco addressed to the Company and dated the Effective Date, signed on behalf of Acquisitionco by two senior executive officers of Acquisitionco (on Acquisitionco's behalf and without personal liability), confirming the same as at the Effective Date;
(d) the board of directors of Symmetry and Acquisitionco shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Symmetry and Acquisitionco to permit the consummation of the Transaction; and
(ive) Acquisitionco shall have deposited the aggregate cash purchase price payable under the Transaction for the Company Shares and Company Options with the Depositary or the Company, as applicable.
(b2) The Company may not rely on the failure to satisfy any of the conditions precedent precedents in Section 5.1 or Section 5.3 if the condition precedent was not satisfied solely as a result of a material default by the Company in complying with its obligations in this Agreement.
Appears in 1 contract
Samples: Combination Agreement (Masonite International Corp)
Additional Conditions Precedent to the Obligations of the Company. (a) The obligations of the Company to complete the Transaction Arrangement shall also be subject to fulfillment of each of the following conditions precedent (each of which is for the exclusive benefit of the Company and may be waived by the Company):
): (ia) all covenants of Symmetry Parent and Acquisitionco Acquisition Sub under this Agreement to be performed on or before the Closing Time Effective Date shall have been duly performed by them Parent and Acquisition Sub in all material respects, and the Company shall have received a certificate of each of Symmetry and Acquisitionco Parent addressed to the Company and dated the Effective Date, in the case of Acquisitionco signed on behalf of Acquisitionco Parent by two a senior executive officers officer of Acquisitionco Parent (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on SymmetryParent’s behalf and without personal liability), confirming the same as at the Effective Date;
; (iib) (A) the all representations and warranties of Symmetry Parent and Acquisitionco that are qualified by references to materiality or Material Adverse Effect Acquisition Sub under this Agreement shall be true and correct; and (B) the representations and warranties of Symmetry and Acquisitionco not so qualified shall be have been true and correct in all material respects, in each case (without giving effect to any materiality qualifiers contained therein) as of the date hereof and as of the Closing Time Effective Date as if made on and as of such time; time (except to the extent that such failures to be true and correct would not have a material adverse effect on the ability of the Parent and Acquisition Sub to close the Transactions and perform their obligations hereunder and except such representations and warranties that speak solely as of an earlier date, in which event such representations and warranties shall be true and correct (subject to the exception in the first parenthetical of this Section 6.03(b)) to such extent as of such earlier date) and the Company shall have received a certificate of Symmetry and Acquisitionco Parent addressed to the Company and dated the Effective Date, signed on behalf of Acquisitionco Parent by two a senior executive officers officer of Acquisitionco Parent (on Acquisitionco’s behalf and without personal liability) and in the case of Symmetry signed on behalf of Symmetry by two senior executive officers of Symmetry (on SymmetryParent’s behalf and without personal liability), confirming the same as at the Effective Date;
; and (iiic) the board of directors of Symmetry and Acquisitionco shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Symmetry and Acquisitionco to permit the consummation of the Transaction; and
(iv) Acquisitionco Acquisition Sub shall have deposited the aggregate cash purchase price payable under the Transaction for the Company Shares with the Depositary in escrow at or prior to the time of filing of the Articles of Arrangement the funds required to effect payment in full for all of the Securities to be acquired pursuant to the Arrangement and the Depositary shall have confirmed to the Company receipt of these funds. Such funds may be invested by the Depositary as directed by Acquisition Sub or, after the Effective Time, the Company; provided that (i) no such investment or losses thereon shall affect the Purchase Price per Common Share and following any losses Parent shall promptly provide additional funds to the Depositary in the amount of such losses and (ii) such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations with a Credit Rating of “P-1” or “A-1” or better by Standard & Poor’s Ratings Group or Xxxxx’x Investors Service, Inc., respectively. Any interest or income produced by such investments will be payable to the Company or Acquisition Sub, as applicable.
(b) Parent directs. SECTION 6.04. Satisfaction of Conditions. The Company may not rely on the failure conditions precedent set out in Section 6.01, Section 6.02 and Section 6.03 shall be conclusively deemed to satisfy any have been satisfied, waived or released when a Certificate of Arrangement in respect of the conditions precedent in Section 5.1 or Section 5.3 if the condition precedent was not satisfied solely as a result of a material default Arrangement is issued by the Company in complying with its obligations in this AgreementDirector.
Appears in 1 contract
Samples: Arrangement Agreement