ADDITIONAL CONDITIONS TO THE OBLIGATIONS. of Delta, Ultra and the Merger Subs (i) The Fundamental Representations and Warranties shall be true and correct in all respects, in each case as of the Effective Times as if made as of the Effective Times (except to the extent such representations and warranties address matters as of a particular date, which shall be true and correct as of the specified date); (ii) The representations and warranties of Vector, Kodiak and the Enumerated Stockholders contained in this Agreement other than the Fundamental Representations and Warranties (disregarding all materiality, Vector Material Adverse Effect or Kodiak Material Adverse Effect qualifications or exceptions) shall be true and correct in all respects, in each case as of the Effective Times as if made as of the Effective Times (except to the extent such representations and warranties address matters as of a particular date, which shall be true and correct as of the specified date), except where the failure to be true and correct has not had or would not, individually or in the aggregate, reasonably be expected to have a Vector/Kodiak Material Adverse Effect; and (iii) Vector, Kodiak and the Enumerated Stockholders shall have each performed in all material respects their respective covenants and agreements (other than those covenants and agreements in Section 8.2(o), which shall have been performed in all respects, subject only to de minimis exceptions) contained in this Agreement required to be performed at or prior to the Effective Times; (b) Vector shall have delivered to Delta a certificate, dated as of the Closing Date, of an executive officer of Vector certifying the satisfaction by Vector of the conditions set forth in Section 9.2(a); (c) Kodiak shall have delivered to Delta a certificate, dated as of the Closing Date, of an executive officer of Vector certifying the satisfaction by Kodiak of the conditions set forth in Section 9.2(a); (d) Each Enumerated Stockholder shall have delivered to Delta a certificate, dated as of the Closing Date, certifying the satisfaction by such Enumerated Stockholder of the conditions set forth in Section 9.2(a); (e) Since June 30, 2017, no Vector/Kodiak Material Adverse Effect shall have occurred; (f) The Vector Advisory Agreement and any other agreements (the “Vector Parent Agreements”) between any of the Vector Entities, on the one hand, and the Vector Stockholder or Affiliate of the Vector Stockholder (each, a “Vector Parent”), on the other hand, shall have been terminated effective as of the Effective Times, and no further obligations, monetary or otherwise, shall remain or otherwise continue in connection with any such agreement as of the Effective Times; and (g) The Kodiak Advisory Agreement and any other agreements (the “Kodiak Parent Agreements”) between any of the Kodiak Entities, on the one hand, and the Kodiak Stockholder or Affiliate of the Kodiak Stockholder (each, a “Kodiak Parent”), on the other hand, shall have been terminated effective as of the Effective Times, and no further obligations, monetary or otherwise, shall remain or otherwise continue in connection with any such agreement as of the Effective Times.
Appears in 1 contract
Samples: Merger Agreement (DXC Technology Co)
ADDITIONAL CONDITIONS TO THE OBLIGATIONS. OF THE PARENT AND THE MERGER SUB. The obligations of Delta, Ultra the Parent and the Merger Subs
(i) The Fundamental Representations Sub to consummate and Warranties effect the Merger and the transactions contemplated by this Agreement shall be true and correct in all respects, in each case as of the Effective Times as if made as of the Effective Times (except subject to the extent such representations and warranties address matters as of a particular date, which shall be true and correct as of the specified date);
(ii) The representations and warranties of Vector, Kodiak and the Enumerated Stockholders contained in this Agreement other than the Fundamental Representations and Warranties (disregarding all materiality, Vector Material Adverse Effect or Kodiak Material Adverse Effect qualifications or exceptions) shall be true and correct in all respects, in each case as of the Effective Times as if made as of the Effective Times (except to the extent such representations and warranties address matters as of a particular date, which shall be true and correct as of the specified date), except where the failure to be true and correct has not had or would not, individually or in the aggregate, reasonably be expected to have a Vector/Kodiak Material Adverse Effect; and
(iii) Vector, Kodiak and the Enumerated Stockholders shall have each performed in all material respects their respective covenants and agreements (other than those covenants and agreements in Section 8.2(o), which shall have been performed in all respects, subject only to de minimis exceptions) contained in this Agreement required to be performed satisfaction at or prior to the Effective TimesTime of each of the following conditions, any of which may be waived, in writing, exclusively by Parent:
(a) The representations and warranties made by the Company shall be accurate in all material respects as of the date hereof and as of the Effective Time and the terms and conditions of this Agreement to be performed and complied with by the Company on or prior to the Effective Time shall have been performed and complied with by the Company on or prior to the Effective Time, and the Parent will have received a certificate, in form reasonably acceptable to the Parent, signed by the Company dated the Effective Time, certifying to such effect;
(b) Vector The Company shall have delivered to Delta a certificate, dated as received all of the Closing Dateregulatory, shareholder and other third party consents, permits, approvals and authorizations (other than the consent of an executive officer of Vector certifying Parent as the satisfaction by Vector sole shareholder of the conditions set forth in Section 9.2(a)Merger Sub) necessary to consummate the Merger;
(c) Kodiak The Company and the Surviving Corporation shall have delivered executed the Assignment Agreement by and between the Company and the Parent in the form of EXHIBIT G attached hereto pursuant to Delta a certificatewhich the Surviving Corporation shall, dated as of the Closing DateEffective Time, assign to the Shareholder all of its rights to the name "Its XX.xxx" (the "Name") subject to an executive officer of Vector certifying the satisfaction by Kodiak agreement of the conditions set forth Shareholder not to use the Name until after the first anniversary of the Effective Time and thereafter not use the Name in Section 9.2(a)a business competitive with that of "XxxxxxXxxxXxxxx.xxx" as constituted on the date of the Closing;
(d) Each Enumerated Stockholder The Company and Takes on Distribution shall have delivered executed the letter agreement from the Company to Delta a certificate, dated as Takes on Distribution in the form of the Closing Date, certifying the satisfaction by such Enumerated Stockholder of the conditions set forth in Section 9.2(a)EXHIBIT H attached hereto;
(e) Since June 30, 2017, no Vector/Kodiak Material Adverse Effect Xxxxx XxXxxxx and the Parent shall have occurreddetermined the terms and conditions of the election of Xx. XxXxxxx to the Board of Directors or Advisory Board of the Parent or, in the alternative, shall have determined that Xx. XxXxxxx shall not be appointed to either the Board of Directors of the Parent or the Advisory Board;
(f) The Vector Advisory Agreement and any other agreements (the “Vector Parent Agreements”) between any of the Vector Entities, on the one hand, and the Vector Stockholder or Affiliate of the Vector Stockholder (each, a “Vector Parent”), on the other hand, Shareholder shall have been terminated effective as paid all of their own costs and expenses associated with the Effective TimesMerger, including, without limitation, the fees and no further obligationsexpense of any counsel, monetary or otherwise, shall remain or otherwise continue accountants and financial advisors in connection with any such agreement as of the Effective Times; andtherewith;
(g) The Kodiak Advisory Agreement and any other agreements (the “Kodiak Parent Agreements”) between any of the Kodiak Entities, on the one hand, and the Kodiak Stockholder or Affiliate of the Kodiak Stockholder (each, a “Kodiak Parent”), on the other hand, Shareholder shall have been terminated effective as of the Effective Times, and no further obligations, monetary or otherwise, shall remain or otherwise continue waived its appraisal rights in connection with any such agreement as this Agreement and the transactions contemplated hereby;
(h) The Shareholder shall have changed its name from Xxxxx.xxx, LLC to Derby Street Investments, LLC; and
(i) Each of the Effective Timesindividuals listed on SCHEDULE 1.6 attached hereto shall have signed an investor representation letter in the form of EXHIBIT I attached hereto.
Appears in 1 contract
ADDITIONAL CONDITIONS TO THE OBLIGATIONS. of Delta, Ultra Parent and Sub. The obligations of Parent and Sub to effect ----------------- the Merger Subsare also subject to each of the following conditions:
(ia) The Fundamental Representations Company shall have performed in all material respects each obligation and Warranties covenant to be performed by it hereunder at or prior to the Effective Time;
(b) The representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects, in each case material respects at and as of the Effective Times Time as if made at and as of the Effective Times (such time, except as affected by transactions contemplated or permitted by this Agreement and except to the extent that any of such representations and warranties address matters representation or warranty is made as of a particular specified date, in which case such representation or warranty shall be true and correct as of the specified date);
(ii) The representations and warranties of Vector, Kodiak and the Enumerated Stockholders contained in this Agreement other than the Fundamental Representations and Warranties (disregarding all materiality, Vector Material Adverse Effect or Kodiak Material Adverse Effect qualifications or exceptions) shall be have been true and correct in all respects, in each case material respects as of the Effective Times as if made as of the Effective Times (except to the extent such representations and warranties address matters as of a particular date, which shall be true and correct as of the specified date), except where the failure to be true and correct has not had or would not, individually or in the aggregate, reasonably be expected to have a Vector/Kodiak Material Adverse Effect; and
(iii) Vector, Kodiak and the Enumerated Stockholders shall have each performed in all material respects their respective covenants and agreements (other than those covenants and agreements in Section 8.2(o), which shall have been performed in all respects, subject only to de minimis exceptions) contained in this Agreement required to be performed at or prior to the Effective Times;
(b) Vector shall have delivered to Delta a certificate, dated as of the Closing Date, of an executive officer of Vector certifying the satisfaction by Vector of the conditions set forth in Section 9.2(a);
(c) Kodiak The Material Consents set forth on Schedule 3.07 attached hereto, required to consummate the transactions contemplated hereby, shall have delivered to Delta a certificate, dated as of the Closing Date, of an executive officer of Vector certifying the satisfaction by Kodiak of the conditions set forth in Section 9.2(a)been obtained;
(d) Each Enumerated Stockholder The Company shall have delivered to Delta a certificate, dated as Parent certificates issued by appropriate governmental authorities (i) evidencing the good standing of the Closing DateCompany in the State of Ohio and as a foreign corporation in each jurisdiction in which it has qualified to do business as a foreign corporation, certifying and (ii) evidencing the satisfaction by such Enumerated Stockholder good standing of each Subsidiary of the conditions set forth Company in Section 9.2(a)its jurisdiction of organization or incorporation and as a foreign corporation in which it has qualified to do business as a foreign corporation;
(e) Since June 30The Company shall have delivered to Parent copies, 2017certified by the Secretary or Assistant Secretary, no Vector/Kodiak of the resolutions adopted by the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and by the shareholders of the Company approving this Agreement and the Merger;
(f) Parent shall have received sufficient funding pursuant to the Commitment Letter to enable Sub to consummate the Merger and to pay related fees and expenses;
(g) No Company Material Adverse Effect shall have occurred;
(fh) The Vector Advisory Agreement All incentive stock option and any other agreements (non-qualified stock option plans of the “Vector Parent Agreements”) between Company, and each option issued under any of the Vector Entities, on the one hand, and the Vector Stockholder or Affiliate of the Vector Stockholder (each, a “Vector Parent”), on the other handsuch plans, shall have been terminated effective amended, to the extent necessary in accordance with Section 2.05 hereof;
(i) Appraisal rights under the Ohio Act shall have been perfected by the holders of not more than five percent (5%) of the outstanding shares;
(j) The Company shall have delivered to Parent and Sub the certificate of its Chief Executive and Chief Financial Officers, certifying as to the fulfillment of the conditions to the obligations of Parent and Sub set forth in this Article VI; ----------
(k) Parent and Sub shall have received the opinion of Thompson Hine & Flory P.L.L., counsel to the Company, xxxxxxnxxxxly xx xxe form of Annex D hereto; and
(l) The officers and directors of the Company and its Subsidiaries specified by Parent shall have resigned their respective positions as of the Effective Times, and no further obligations, monetary or otherwise, shall remain or otherwise continue in connection with any such agreement as of the Effective Times; and
(g) The Kodiak Advisory Agreement and any other agreements (the “Kodiak Parent Agreements”) between any of the Kodiak Entities, on the one hand, and the Kodiak Stockholder or Affiliate of the Kodiak Stockholder (each, a “Kodiak Parent”), on the other hand, shall have been terminated effective as of the Effective Times, and no further obligations, monetary or otherwise, shall remain or otherwise continue in connection with any such agreement as of the Effective TimesTime.
Appears in 1 contract
Samples: Merger Agreement (American Eco Corp)
ADDITIONAL CONDITIONS TO THE OBLIGATIONS. OF HOLDCO, WORLD ACCESS, SUB-1 AND SUB-2. The obligations of DeltaHoldco, Ultra World Access, Sub-1 and Sub-2 to consummate the Merger SubsMergers are also subject to the satisfaction at or prior to the Effective Time of the following further conditions, any or all of which may be waived, in whole or in part, by each of the Parties intended to benefit therefrom, to the extent permitted by applicable Law:
(iA) The Fundamental Representations NACT shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, the representations and Warranties warranties of NACT contained in this Agreement and in any certificate delivered by NACT pursuant hereto shall be true and correct in all material respects, in each case at and as of the Effective Times Time as if made at and as of the Effective Times (such time, except to the extent such that those representations and warranties which address matters only as of a particular date, which date shall be remain true and correct as of such date, and World Access shall have received a certificate signed by the specified date)chief executive officer and the principal financial officer of NACT to the foregoing effect;
(iiB) The representations and warranties of Vector, Kodiak and the Enumerated Stockholders contained in this Agreement other than the Fundamental Representations and Warranties (disregarding all materiality, Vector Material Adverse Effect or Kodiak Material Adverse Effect qualifications or exceptions) shall be true and correct in all respects, in each case as of the Effective Times as if made as of the Effective Times (except to the extent such representations and warranties address matters as of a particular date, which shall be true and correct as of the specified date), except where the failure to be true and correct has not had or would not, individually or in the aggregate, reasonably be expected to have a Vector/Kodiak Material Adverse Effect; and
(iii) Vector, Kodiak and the Enumerated Stockholders shall have each performed in all material respects their respective covenants and agreements (other than those covenants and agreements in Section 8.2(o), which shall have been performed in all respects, subject only to de minimis exceptions) contained in this Agreement required to be performed at or prior to the Effective Times;
(b) Vector shall have delivered to Delta a certificate, dated as of the Closing Date, of an executive officer of Vector certifying the satisfaction by Vector of the conditions set forth in Section 9.2(a);
(c) Kodiak shall have delivered to Delta a certificate, dated as of the Closing Date, of an executive officer of Vector certifying the satisfaction by Kodiak of the conditions set forth in Section 9.2(a);
(d) Each Enumerated Stockholder shall have delivered to Delta a certificate, dated as of the Closing Date, certifying the satisfaction by such Enumerated Stockholder of the conditions set forth in Section 9.2(a);
(e) Since June 30, 2017, no Vector/Kodiak NACT Material Adverse Effect shall have occurred;
(fC) The Vector Advisory Agreement World Access shall have received or be satisfied that it will receive all consents and approvals contemplated by Section 4.4 of the NACT Disclosure Schedule and any other agreements (consents of third parties necessary in connection with the “Vector Parent Agreements”) between any consummation of the Vector Entities, on NACT Merger if the one hand, and the Vector Stockholder failure to obtain any such consent or Affiliate of the Vector Stockholder consents would have an NACT Material Adverse Effect;
(each, a “Vector Parent”), on the other hand, D) World Access shall have been terminated effective received all documents it may reasonably request relating to the authority of NACT to enter into this Agreement, all in form and substance reasonably satisfactory to World Access; and
(E) World Access shall have received from its counsel, Rogexx & Xardxx XXX, an opinion based upon reasonably requested representation letters and dated as of the Effective TimesTime, and no further obligations, monetary or otherwise, shall remain or otherwise continue in connection with any such agreement to the effect that the World Access Merger will be treated as a transfer of property to Holdco by holders of World Access Stock governed by Section 351 of the Effective Times; and
(g) The Kodiak Advisory Agreement and any other agreements (the “Kodiak Parent Agreements”) between any of the Kodiak Entities, on the one hand, and the Kodiak Stockholder or Affiliate of the Kodiak Stockholder (each, a “Kodiak Parent”), on the other hand, shall have been terminated effective as of the Effective Times, and no further obligations, monetary or otherwise, shall remain or otherwise continue in connection with any such agreement as of the Effective TimesCode.
Appears in 1 contract
Samples: Merger Agreement (World Access Inc)
ADDITIONAL CONDITIONS TO THE OBLIGATIONS. OF SELLER AND THE AFFILIATE STOCKHOLDERS. The obligations of Delta, Ultra Seller and the Merger SubsAffiliate Stockholders to effect the transactions contemplated by this Agreement are also subject to the fulfillment at or prior to the Closing Date of the following conditions, unless such conditions are waived in writing by Seller and the Stockholders:
(ia) The Fundamental Representations each of CIBER and Warranties CIS shall have performed or complied, in all material respects, with each obligation, agreement and covenant to be performed or complied with by it hereunder at or prior to the Closing Date;
(b) the representations and warranties of CIBER and CIS in this Agreement shall be true and correct in all respectsmaterial respects on the date of this Agreement and on the Closing Date;
(c) Seller shall have received a certificate signed by an executive officer of each of CIBER and CIS certifying to the matters set forth in Sections 7.2(a) and (b) and a certificate signed by the secretaries of CIBER and CIS, in each case dated as of the Effective Times as if made as of the Effective Times (except to the extent such representations and warranties address matters as of a particular Closing date, which shall be true certifying the certificates of incorporation and correct as by-laws of CIBER and CIS, and the specified date)resolutions of their respective boards of directors approving this Agreement and the transactions contemplated hereby;
(iid) The representations CIS shall have executed and warranties of Vector, Kodiak delivered the Affiliate Stockholder Employment Agreements referred to in Section 6.3(a) hereof;
(e) CIS shall have executed and delivered the Enumerated Stockholders contained Non-Affiliate Stockholder Employment Agreements referred to in this Agreement other than the Fundamental Representations and Warranties (disregarding all materiality, Vector Material Adverse Effect or Kodiak Material Adverse Effect qualifications or exceptionsSection 6.3(b) shall be true and correct in all respects, in each case as of the Effective Times as if made as of the Effective Times (except to the extent such representations and warranties address matters as of a particular date, which shall be true and correct as of the specified date), except where the failure to be true and correct has not had or would not, individually or in the aggregate, reasonably be expected to have a Vector/Kodiak Material Adverse Effecthereof; and
(iiif) Vector, Kodiak and the Enumerated Stockholders Seller shall have each performed in all material respects their respective covenants and agreements (other than those covenants and agreements in Section 8.2(o)received the opinion of Xxxxx, which shall have been performed in all respects, subject only to de minimis exceptions) contained in this Agreement required to be performed at or prior to the Effective Times;
(b) Vector shall have delivered to Delta a certificateXxxxxx & Xxxxxx LLP, dated as of the Closing Date, of an executive officer of Vector certifying in substantially the satisfaction by Vector of the conditions set forth in Section 9.2(a);
(c) Kodiak shall have delivered to Delta a certificate, dated form attached as of the Closing Date, of an executive officer of Vector certifying the satisfaction by Kodiak of the conditions set forth in Section 9.2(a);
(d) Each Enumerated Stockholder shall have delivered to Delta a certificate, dated as of the Closing Date, certifying the satisfaction by such Enumerated Stockholder of the conditions set forth in Section 9.2(a);
(e) Since June 30, 2017, no Vector/Kodiak Material Adverse Effect shall have occurred;
(f) The Vector Advisory Agreement and any other agreements (the “Vector Parent Agreements”) between any of the Vector Entities, on the one hand, and the Vector Stockholder or Affiliate of the Vector Stockholder (each, a “Vector Parent”), on the other hand, shall have been terminated effective as of the Effective Times, and no further obligations, monetary or otherwise, shall remain or otherwise continue in connection with any such agreement as of the Effective Times; and
(g) The Kodiak Advisory Agreement and any other agreements (the “Kodiak Parent Agreements”) between any of the Kodiak Entities, on the one hand, and the Kodiak Stockholder or Affiliate of the Kodiak Stockholder (each, a “Kodiak Parent”), on the other hand, shall have been terminated effective as of the Effective Times, and no further obligations, monetary or otherwise, shall remain or otherwise continue in connection with any such agreement as of the Effective Times.EXHIBIT D.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Liquidation (Ciber Inc)