Additional Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to consummate the Merger shall also be subject to the satisfaction at or prior to the Effective Time of the following additional conditions: (a) There shall not be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated or deemed applicable, to the Merger or the Agreement which (i) restrains or prohibits Parent’s or Merger Sub’s ownership or operation (or that of any of their respective Subsidiaries or affiliates) of all or a material portion of their or the Company’s and the Company Subsidiaries’ businesses or assets, or compels Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company or Parent and their respective Subsidiaries, (ii) restrains or prohibits the consummation of the Merger or the performance of any of the other transactions contemplated by this Agreement or (iii) imposes limitations on the ability of Merger Sub or Parent to acquire or hold, or exercise full rights of ownership of the Shares. (b) The representations and warranties of the Company set forth herein shall be true and correct as of the date hereof and as of the Closing Date, with the same effect as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except (other than with respect to the representations and warranties contained in Sections 3.3 through 3.6 inclusive, which shall be true and correct in all material respects) where the failure of such representations and warranties to be so true and correct (without giving effect to any threshold or any limitation or qualifier as to “materiality” or “Company Material Adverse Effect” or words of similar import set forth therein) does not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (c) The Company shall have performed and complied in all material respects with all agreements and covenants required to be performed or complied with by it under the Agreement on or before the Effective Time. (d) Any applicable waiting periods under the HSR Act and the antitrust or competition Laws of applicable European Union jurisdictions relating to the Merger shall have expired or been terminated and all material consents, approvals and authorizations required to be obtained or notices required to be given prior to the consummation of the Merger by the parties hereto from Governmental Entities to consummate the Merger, shall have been made, given or obtained, as the case may be. (e) The Company shall have delivered an officers’ certificate, duly executed by the Company’s Chief Executive Officer and Chief Financial Officer, stating that the conditions set forth in Sections 7.2(b) and (c) above have been satisfied.
Appears in 2 contracts
Samples: Merger Agreement (JLG Industries Inc), Agreement and Plan of Merger (Oshkosh Truck Corp)
Additional Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to consummate the Merger shall also be subject to the satisfaction at or prior to the Effective Time of the following additional conditions, any and all of which may be waived in whole or in part by Parent and Merger Sub:
(a) There shall not be pending any statutesuit, ruleaction or proceeding by or before any Governmental Entity against Merger Sub, regulationParent, judgment, order the Company or injunction enacted, entered, enforced, promulgated or deemed applicable, to the Merger or the Agreement which any Company Subsidiary (i) restrains seeking to restrain or prohibits prohibit Parent’s 's or Merger Sub’s 's ownership or operation (or that of any of their respective Subsidiaries or affiliates) of all or a material portion of their or the Company’s 's and the Company Subsidiaries’ ' businesses or assets, or compels to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company or Parent and their respective Subsidiaries, (ii) restrains seeking to restrain or prohibits prohibit or make materially more costly the consummation of the Merger or the performance of any of the other transactions contemplated by this Agreement Agreement, or seeking to obtain from the Company, Parent or Merger Sub any material damages, (iii) imposes seeking to impose limitations on the ability of Merger Sub or Parent to acquire or hold, or exercise full rights of ownership of the Shares; or (iv) which otherwise may reasonably be expected to have a Company Material Adverse Effect.
(b) The There shall not be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated or deemed applicable, to the Merger, nor shall any other action be taken, that is reasonably likely to result, directly or indirectly, in any of the consequences referred to in clauses (i) through (iv) of paragraph (a) above.
(c) (i) the representations and warranties of the Company set forth herein contained in Section 3.3(a) shall be true and correct in all respects (except for any de minimis inaccuracy), (ii) the representations and warranties of the Company in Sections 3.3(b), 3.3(c), 3.3(d), 3.4, 3.5, 3.6, 3.8(a), 3.8(d), 3.8(e), 3.9(b) or 3.24 that are qualified as to materiality or by reference to Company Material Adverse Effect shall be true and correct in all respects, or any such representation and warranty that is not so qualified shall be true and correct in all material respects, in each case as of the date hereof of the Agreement and as of the Closing Date, with the same effect as if made at and as of such time date (except to the extent expressly that any such representation or warranty that is made as of an earlier date, a specified date that is qualified as to materiality or by reference to Company Material Adverse Effect or Company shall be true and correct in which case all respects as of such specified date), except and any such representation and warranty that is made as of a specified date that is not so qualified shall be true and correct in all material respects as of such specified date) and (iii) any other representation and warranty of the Company in the Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein) shall be true and correct in all respects, as of the date of the Agreement and as of the Closing as if made at and as of such date (other than with respect to the representations and warranties contained in Sections 3.3 through 3.6 inclusiveany such representation or warranty that is made as of a specified date, which shall be true and correct in all material respects) respects as of such specified date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any threshold correct, either individually or any limitation or qualifier as to “materiality” or “Company Material Adverse Effect” or words of similar import set forth therein) does in the aggregate, has not have, had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect.
(cd) The Company shall have performed and complied in all material respects with all agreements and covenants required to be performed or complied with by it under the Agreement on or before the Effective Time.
(de) Any applicable waiting periods The Company shall have obtained all of the consents and approvals from third parties under the HSR Act and the antitrust or competition Laws of applicable European Union jurisdictions relating to the Merger shall have expired or been terminated and all material consents, approvals and authorizations required to be obtained or notices required to be given prior to the consummation Contracts identified in Section 7.2(e) of the Merger by the parties hereto from Governmental Entities to consummate the Merger, shall have been made, given or obtained, as the case may beCompany Disclosure Schedule.
(ef) The Company shall have delivered an officers’ ' certificate, duly executed by the Company’s 's Chief Executive Officer and Chief Financial Officer, stating that the conditions set forth in Sections 7.2(b7.2(c) and (cd) above have been satisfied.
(g) The Company shall have delivered a certificate, in form and substance reasonably satisfactory to Parent to Merger Sub, establishing that the Company is not a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code, and has not been such a United States real property holding corporation within the five year period ending on the Closing Date.
(h) Parent shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to Parent, on the date on which the Form S-4 is filed with the SEC and on the Closing Date, an opinion, in each case dated as of such respective dates and to the effect that: (i) the Merger will qualify for U.S. Federal income tax purposes as a "reorganization" within the meaning of Section 368(a) of the Code and (ii) Parent, Merger Sub and the Company will each be a "party to the reorganization" within the meaning of Section 368(b) of the Code; provided that if Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP does not render such opinion to Parent, this condition shall nonetheless be deemed satisfied if Paul, Hastings, Xxxxxxxx & Xxxxxx LLP renders such opinion to Parent (it being agreed that Parent and the Company shall each provide reasonable cooperation to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP or Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, as the case may be, to enable them to render such opinion). In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP or Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, as the case may be, shall be entitled to require and rely upon letters acceptable to them and customary for transactions of this type setting forth factual statements and representations regarding the facts in existence at the applicable time, including from officers from Parent, Merger Sub and the Company, and upon assumptions regarding the facts in existence at the applicable time.
Appears in 1 contract
Additional Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligations obligation of Parent and Merger Sub to consummate effect the Merger shall also be subject to the satisfaction waiver by Parent and Merger Sub or the fulfillment at or prior to the Effective Time Closing Date of the following additional conditions:
(a) There Each representation and warranty of the Company contained in this Agreement that is qualified as to materiality shall not be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated or deemed applicable, to the Merger or the Agreement which have been true and correct (i) restrains or prohibits Parent’s or Merger Sub’s ownership or operation (or that of any of their respective Subsidiaries or affiliates) of all or a material portion of their or the Company’s and the Company Subsidiaries’ businesses or assets, or compels Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company or Parent and their respective Subsidiaries, (ii) restrains or prohibits the consummation of the Merger or the performance of any of the other transactions contemplated by this Agreement or (iii) imposes limitations on the ability of Merger Sub or Parent to acquire or hold, or exercise full rights of ownership of the Shares.
(b) The representations and warranties of the Company set forth herein shall be true and correct as of the date hereof of this Agreement, and (ii) subject to the provisions of the penultimate sentence of Section 6.4, on and as of the Closing Date, Date with the same force and effect as if made at and as of such time (on the Closing Date, except to the extent expressly made that such representations and warranties speak as of an earlier date, in which case such representations and warranties shall be true and correct as of such date). Each representation and warranty of the Company contained in this Agreement that is not qualified as to materiality shall have been true and correct (i) in all material respects as of the date of this Agreement and (ii) subject to the provisions of the penultimate sentence of Section 6.4, in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, except (other than with respect to the extent that such representations and warranties contained speak as of an earlier date, in Sections 3.3 through 3.6 inclusive, which case such representations and warranties shall be true and correct in all material respects) where respects as of such date. Parent shall have received a certificate with respect to the foregoing signed on behalf of the Company by an authorized officer of the Company (“Company Closing Certificate”). Notwithstanding the foregoing, Parent and Merger Sub shall not be entitled to assert inaccuracy or breach of representation or warranty by the Company as a failure of condition to Closing under this Section 7.3(a) unless the individual or aggregate impact of all such representations inaccuracies and warranties to be so true and correct breaches (without giving effect for these purposes to any threshold materiality or any limitation or qualifier as to “materiality” or “Company Material Adverse Effect” or words of similar import set forth thereinEffect qualifiers) does not have, and by the Company would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse EffectEffect on the Company.
(cb) The Company shall have performed and complied in all material respects with all its agreements and covenants contained in this Agreement required to be performed or complied with by it under prior to the Closing.
(c) All of the conditions to closing set out in Section 4.1 of the Note Holder Payoff and Recapitalization Agreement on or before the Effective Timeshall have been satisfied and not waived.
(d) Any applicable waiting periods under The Adjusted Cash Number shall be greater than the HSR Act and sum of (i) the antitrust or competition Laws Aggregate Base Common Merger Consideration, (ii) the amount of applicable European Union jurisdictions relating to the Merger shall have expired or been terminated and all material consents, approvals and authorizations required Indebtedness to be obtained or notices required paid in cash by Parent pursuant to be given prior to Section 1.6(c), (iii) the consummation amount of the Escrow Fund, (iv) the amount of the Representative Fund, and (v) if applicable, the Aggregate Minimum Preferred Merger by the parties hereto from Governmental Entities to consummate the Merger, shall have been made, given or obtained, as the case may beConsideration.
(e) The Company and the Company Subsidiaries shall have no Indebtedness other than (i) Indebtedness to be paid by Parent at the Closing pursuant to Section 1.6(c), (ii) Indebtedness taken into account in determining the Working Capital Adjustment, or (iii) Indebtedness that will be paid or otherwise discharged pursuant to the terms of the Note Holder Payoff and Recapitalization Agreement.
(f) The holders of the Recorded Liens shall have either (i) released the Recorded Liens of record, or (ii) furnished to the Company and Parent payoff statements and fully executed releases of the Recorded Liens, with delivery the releases conditioned only on receipt by such holders of the amounts specified in the payoff statements.
(g) The Company shall have executed for filing with the SEC promptly after the Closing a withdrawal of the Company’s registration statement on Form S-1 and assigned Registration Number 333-135537.
(h) The Representative, on behalf of the Note Holders and the holders of Company Preferred Stock, and the Escrow Agent shall have executed the Escrow Agreement for delivery at the Closing.
(i) The Company Affiliates listed in Schedule 6.8 and the Note Holders receiving shares of Parent Common Stock pursuant to the terms of the Note Holder Payoff and Recapitalization Agreement shall have executed the Voting Agreement for delivery at the Closing.
(j) The Company Affiliates listed in Schedule 6.10 and each Note Holder receiving shares of Parent Common Stock pursuant to the terms of the Note Holder Payoff and Recapitalization Agreement shall have executed a Lock-up Letter for delivery at the Closing.
(k) Parent shall have been furnished with an opinion of Vxxxxx & Exxxxx L.L.P., counsel to the Company, in substantially the form attached hereto as Exhibit I.
(l) The Company Stockholder Consent shall have been adopted in accordance with the Company Charter Documents and the DGCL on or before the close of business on November 9, 2007, and the certificate required by Section 6.16(b) shall have been delivered to Parent.
(m) The Company shall have delivered to Parent a copy of (i) the resolutions adopted by the Company Board authorizing the execution, delivery and performance of this Agreement and the consummation of all of the transactions contemplated hereby, including the Merger, and (ii) and a certificate executed on behalf of the Company by its corporate secretary and dated the Closing Date certifying to Parent (A) that the resolutions of the Company Board described at (i) were duly adopted and have not been amended or rescinded, (B) the Company Stockholder Consent was duly obtained and has not been amended or rescinded, and (C) a list of the record owners of Company Stock as of the Closing Date, including the name and address of each such owner and the number of shares of Company Stock (and the class and series thereof) owned of record by such owner (the “Company Stockholder List”).
(n) The officers and directors of the Company and each Company Subsidiary shall have resigned from all of their positions and offices with the Company and the Company Subsidiaries; provided, however, that the officers of the Company who are Continuing Employees shall not be required to resign as officers of the Company.
(o) Parent shall have been furnished with an officers’ certificateopinion of Jones, duly executed Walker, Waechter, Poitevent, Carrère & Dxxxxxx, L.L.P., counsel to the Company, in substantially the form attached hereto as Exhibit J.
(p) The Company Recent Financial Statements shall have been reviewed by the Company’s Chief Executive Officer independent auditors in accordance with the Statements on Standards for Accounting and Chief Financial OfficerReview Services (AR Section 100).
(q) All Insurance Policies will be in full force and effect, stating that other than life insurance policies on the conditions set forth life of any officer of the Company who will not be a Continuing Employee.
(r) The notice described in Sections 7.2(bSection 6.16(c) and (c) above shall have been satisfiedmailed to each holder of Company Stock entitled to appraisal rights under Section 262 of the DGCL at least 21 days prior to the Closing Date.
(s) Holders of not more than five percent (5%) of the Company Common Stock shall have properly exercised and not withdrawn a demand for appraisal under Section 262 of the DGCL.
(t) The Company Common Stock Warrant Agreement Amendment shall have been executed and delivered by the Company, the Warrant Agent and Company Warrantholders holding not less than a majority of the outstanding Company Warrants.
Appears in 1 contract
Additional Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to consummate the Merger shall also be subject to the satisfaction at or prior to the Effective Time of the following additional conditions, any and all of which may be waived in whole or in part by Parent and Merger Sub:
(a) There shall not be pending any statutesuit, ruleaction or proceeding by or before any Governmental Entity against Merger Sub, regulationParent, judgment, order the Company or injunction enacted, entered, enforced, promulgated or deemed applicable, to the Merger or the Agreement which any Company Subsidiary (i) restrains seeking to restrain or prohibits prohibit Parent’s 's or Merger Sub’s 's ownership or operation (or that of any of their respective Subsidiaries or affiliates) of all or a material portion of their or the Company’s 's and the Company Subsidiaries’ ' businesses or assets, or compels to compel Parent or Merger Sub or their respective Subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company or Parent and their respective Subsidiaries, (ii) restrains seeking to restrain or prohibits prohibit or make materially more costly the consummation of the Merger or the performance of any of the other transactions contemplated by this Agreement Agreement, or seeking to obtain from the Company, Parent or Merger Sub any material damages, (iii) imposes seeking to impose limitations on the ability of Merger Sub or Parent to acquire or hold, or exercise full rights of ownership of the Shares; or (iv) which otherwise may reasonably be expected to have a Company Material Adverse Effect.
(b) The There shall not be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated or deemed applicable, to the Merger, nor shall any other action be taken, that is reasonably likely to result, directly or indirectly, in any of the consequences referred to in clauses (i) through (iv) of paragraph (a) above.
(c) (i) the representations and warranties of the Company set forth herein contained in Section 3.3(a) shall be true and correct in all respects (except for any de minimis inaccuracy), (ii) the representations and warranties of the Company in Sections 3.3(b), 3.3(c), 3.3(d), 3.4, 3.5, 3.6, 3.8(a), 3.8(d), 3.8(e), 3.9(b) or 3.24 that are qualified as to materiality or by reference to Company Material Adverse Effect shall be true and correct in all respects, or any such representation and warranty that is not so qualified shall be true and correct in all material respects, in each case as of the date hereof of the Agreement and as of the Closing Date, with the same effect as if made at and as of such time date (except to the extent expressly that any such representation or warranty that is made as of an earlier date, a specified date that is qualified as to materiality or by reference to Company Material Adverse Effect or Company shall be true and correct in which case all respects as of such specified date), except and any such representation and warranty that is made as of a specified date that is not so qualified shall be true and correct in all material respects as of such specified date) and (iii) any other representation and warranty of the Company in the Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein) shall be true and correct in all respects, as of the date of the Agreement and as of the Closing as if made at and as of such date (other than with respect to the representations and warranties contained in Sections 3.3 through 3.6 inclusiveany such representation or warranty that is made as of a specified date, which shall be true and correct in all material respects) respects as of such specified date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any threshold correct, either individually or any limitation or qualifier as to “materiality” or “Company Material Adverse Effect” or words of similar import set forth therein) does in the aggregate, has not have, had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect.
(cd) The Company shall have performed and complied in all material respects with all agreements and covenants required to be performed or complied with by it under the Agreement on or before the Effective Time.
(de) Any applicable waiting periods The Company shall have obtained all of the consents and approvals from third parties under the HSR Act and the antitrust or competition Laws of applicable European Union jurisdictions relating to the Merger shall have expired or been terminated and all material consents, approvals and authorizations required to be obtained or notices required to be given prior to the consummation Contracts identified in Section 7.2(e) of the Merger by the parties hereto from Governmental Entities to consummate the Merger, shall have been made, given or obtained, as the case may beCompany Disclosure Schedule.
(ef) The Company shall have delivered an officers’ ' certificate, duly executed by the Company’s 's Chief Executive Officer and Chief Financial Officer, stating that the conditions set forth in Sections 7.2(b7.2(c) and (cd) above have been satisfied.
(g) The Company shall have delivered a certificate, in form and substance reasonably satisfactory to Parent to Merger Sub, establishing that the Company is not a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code, and has not been such a United States real property holding corporation within the five year period ending on the Closing Date.
(h) Parent shall have received from Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel to Parent, on the date on which the Form S-4 is filed with the SEC and on the Closing Date, an opinion, in each case dated as of such respective dates and to the effect that: (i) the Merger will qualify for U.S. Federal income tax purposes as a "reorganization" within the meaning of Section 368(a) of the Code and (ii) Parent, Merger Sub and the Company will each be a "party to the reorganization" within the meaning of Section 368(b) of the Code; provided that if Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP does not render such opinion to Parent, this condition shall nonetheless be deemed satisfied if Paul, Hastings, Jxxxxxxx & Wxxxxx LLP renders such opinion to Parent (it being agreed that Parent and the Company shall each provide reasonable cooperation to Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP or Paul, Hastings, Jxxxxxxx & Wxxxxx LLP, as the case may be, to enable them to render such opinion). In rendering such opinion, Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP or Paul, Hastings, Jxxxxxxx & Wxxxxx LLP, as the case may be, shall be entitled to require and rely upon letters acceptable to them and customary for transactions of this type setting forth factual statements and representations regarding the facts in existence at the applicable time, including from officers from Parent, Merger Sub and the Company, and upon assumptions regarding the facts in existence at the applicable time.
Appears in 1 contract
Samples: Merger Agreement (Middleby Corp)
