Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect: (a) Affiliate Agreements in the form of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities Act; (b) Employment Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999; (c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto; (d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company: (e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders; (f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing; (g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing; (h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto; (i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates); (j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests"; (k) a certificate executed by the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 have been duly satisfied (the "Company's Closing Certificate"); (l) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3; (m) written resignations of all directors of the Company, effective as of the Closing Date; and (n) the valid and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable law.
Appears in 1 contract
Samples: Merger Agreement (Ask Jeeves Inc)
Agreements and Documents. Parent and the Company Purchaser shall have received the following agreements and documents, each of which shall be in full force and effecteffect (or conditioned upon Closing), as applicable:
(a) Affiliate Agreements in the form of Exhibit F heretoa certificate, duly executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" chief executive officer of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially in the form of Exhibit H heretoSeller, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company and containing the representation and warranty of the Company certifying that the conditions set forth in Sections 6.1Section 7.1, 6.2Section 7.2 and Section 7.4, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 have been duly satisfied (the "Company's “Business Closing Certificate"”);; ACTIVE/123404471.12
(lb) an opinion of counsel to the Seller, in a form reasonably acceptable to Purchaser stating that the vote and approval of the stockholders of the Seller is not required in connection with the Contemplated Transactions under Legal Requirements and the Seller Organizational Documents.
(c) a certificate of merger executed by good standing (or equivalent thereof) of the Company Seller dated no earlier than [***] Business Days prior to be filed with the Closing Date from the Secretary of State of the State of Delaware in accordance with Section 1.3Delaware;
(md) written resignations an IRS Form W-9, duly executed by the Seller;
(e) duly executed copies of all directors each of the CompanyConsents identified on Schedule 2, effective as each in form an substance reasonably acceptable to Purchaser, which are in full force and effect;
(f) the Debt Payoff Letter executed by the lenders of the Closing Date; and
(n) Indebtedness set forth therein, and written evidence, in form satisfactory to Purchaser in its sole discretion, that all Liens on the valid and effective Transferred Assets, other than Permitted Liens, including those set forth on Schedule 3, have been released in full, including by filing termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature statements with respect to all UCC financing statements and otherwise satisfying the requirements of Section 7.5(f);
(g) copies of the resolutions of the board of directors of the Company or Seller, certified by an officer of the SubsidiarySeller, except as provided generally to the authorization of the Transaction Documents and the Contemplated Transactions;
(h) the Bill of Sale, duly executed by the Company's certificate Seller;
(i) the Separation Services Agreement, duly executed by the Seller; and
(j) such other customary instruments of incorporation transfer, assumption, filings or documents, in form and bylaws or by applicable lawsubstance reasonably satisfactory to Purchaser, as may be required to give effect to the Transaction Documents.
Appears in 1 contract
Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements substantially in the form of Exhibit F heretoC-2 (each, an "AFFILIATE AGREEMENT"), executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities ActC-1;
(b) Employment Noncompetition Agreements substantially in the form of Exhibit H heretoD-2 (each a "NONCOMPETITION AGREEMENT") with a term of at least one year from the Effective Time, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999D-1;
(c) Noncompetition Voting Agreements substantially in the form of Exhibit I hereto, F-2 (the "VOTING AGREEMENTS") executed by the individuals identified on Exhibit G heretoF-1;
(d) a FIRPTA Statement Proprietary information and inventions agreements, reasonably satisfactory in the form of Exhibit J heretoand content to Parent, executed by all employees and former employees of the Company:Company and by all consultants and independent contractors and former consultants and former independent contractors to the Company who have not already signed such agreements (including the individuals identified in Part 2.9(f) of the Company Disclosure Schedule);
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx Orrixx, Xxrrxxxxxx & XosaxxXutcxxxxx XXX, xxted as of counsel to the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLPCompany, dated as of the Closing Date, concurring with Parent's management that Parent may account for substantially in the Merger as a "pooling form of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates)Exhibit G;
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(kf) a certificate executed by the Company President and containing the representation and warranty Chief Executive Officer of the Company that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 Section 7 have been duly satisfied in all material respects (the "Company's Closing CertificateCOMPANY OFFICER'S CLOSING CERTIFICATE");
(lg) A true, correct and complete schedule (the "SCHEDULES OF EXPENSES") of all Company Expenses paid or incurred by or on behalf of the Company or the Shareholders through the Closing Date, accompanied by a certificate of merger executed signed by the Company to be filed with the Secretary of State President and Chief Financial Officer of the State of Delaware in accordance with Section 1.3;Company certifying the accuracy and completeness thereof, shall have been delivered by the Company.
(mh) written resignations of all officers and directors of the Company, effective as of the Closing Date; andEffective Time;
(ni) the valid and effective termination as Escrow Agreement substantially in the form of Exhibit B (the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally "ESCROW AGREEMENT") executed by the Company's certificate of incorporation and bylaws or by applicable lawShareholders' Agent.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Accrue Software Inc)
Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F heretoB, executed by the Persons identified on Exhibit E hereto and by any other each Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of (as that term is used in Rule 145 under the Securities Act);
(b) Employment Agreements substantially Reserved;
(c) Release in the form of Exhibit H heretoC, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999Xxx X. Xxxxxx;
(cd) Noncompetition Agreements Agreement in the form of Exhibit I heretoD, executed by the individuals identified on Exhibit G heretoXxx X. Xxxxxx;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D heretoa letter from PricewaterhouseCoopers LLP, executed by each dated as of the Merger StockholdersClosing Date and addressed to Parent and the Company, reasonably satisfactory in form and substance to Parent, updating the "comfort" letter referred to in Section 5.13;
(f) a Registration Rights Agreement in the form of Exhibit K heretoletter from PricewaterhouseCoopers LLP, executed by Merger Stockholders holding at least 93% dated as of the outstanding shares Closing Date and addressed to the Company, reasonably satisfactory in form and substance to Parent and Ernst & Young LLP, to the effect that, after reasonable investigation, PricewaterhouseCoopers LLP is not aware of capital stock any fact concerning the Acquired Corporations or any of the stockholders or affiliates of the Acquired Corporations that could preclude the Company immediately prior to from being a "poolable entity" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the ClosingSEC;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing DateDate and addressed to Parent, concurring reasonably satisfactory in form and substance to Parent, to the effect that Ernst & Young LLP concurs with Parent's management management's conclusion that Parent may account for the Merger may be accounted for as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates)SEC;
(jh) a letter from PricewaterhouseCoopers LLP, legal opinion of Xxxxxx Godward LLP dated as of the Closing DateDate and addressed to Parent, confirming to the effect that and concurring with the Company's management's conclusion Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, as of in rendering such opinion, Xxxxxx Godward LLP may rely upon the Closing Date, no conditions exist that would preclude the Company from becoming a party tax representation letters referred to a merger accounted for as a "pooling of interests"in Section 5.12);
(ki) a certificate executed by the Company and containing the representation and warranty on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 6.4 (with respect to the Required Company Vote exercise of dissenters' rights only) and 6.13 6.5 have been duly satisfied (the "Company's Closing Certificate");satisfied; and
(lj) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all officers and directors from positions as an officer and director of each of the Company, Acquired Corporations effective as of the Closing Date; and
(n) the valid and effective termination as of the Effective Time of provisions in Contracts (it being understood that provide any Person with rights of any nature with respect to the board of directors such resignations by officers of the Company whose employment with the Company or Parent following the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable law.Effective Time shall be continuing shall not constitute a
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (LJL Biosystems Inc)
Agreements and Documents. Parent and the Company The Purchaser shall have received the following agreements and documentsitems from the Vendor, each of which which, to the extent applicable, shall be in full force and effect:
(ai) Affiliate Agreements the Purchaser shall have been assigned the Company’s Contracts to the extent such Contracts are included in the form Purchased Assets; subject to Section 3.1(e)(iii), it being understood that this condition solely relates to the failure to assign a Contract for lack of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" Consent only in respect of the Company for purposes of the Securities Actthose Contracts listed in Schedule 3.1(e)(iii);
(bii) Employment Agreements substantially the Company shall have received, and shall be continuing to receive, all supply of Inventory in the form of Exhibit H heretoOrdinary Course, executed by in a manner consistent with the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999understandings established in new and existing supply agreements;
(ciii) Noncompetition Agreements all Consents to assign the Contracts listed in Schedule 3.1(e)(iii), unless the form of Exhibit I hereto, executed requirement to receive such Consent has been waived by the individuals identified on Exhibit G hereto;
(d) Purchaser in its sole discretion, or the Vendor has delivered a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) written undertaking to obtain such Consent within a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to reasonable delay following the Closing;
(giv) an Escrow Agreement in the form Purchaser shall be satisfied, acting reasonably, that the Vendor has no material issues with respect to Health Canada regulatory matters that cannot be resolved with good faith efforts and cooperation of Exhibit C heretothe Parties, executed and that no material issues with respect to Health Canada regulatory matters shall arise as a result of the transactions contemplated hereby;
(v) a recent certificate of status or similar certificate with respect to the Company, issued by the Escrow Agent appropriate Governmental Authority of its jurisdiction of incorporation;
(vi) certified copies of (i) the constating documents and Merger Stockholders holding at least 93% by-laws of the outstanding shares Company; and (ii) the resolutions of capital stock the shareholders and the sole director of the Company immediately prior consenting to the transfer of the Purchased Assets pursuant to the terms of the Agreement;
(vii) a certificate of an officer of the Company confirming that there are no known or reported Liabilities of the Company current or outstanding as of the Closing Time, which Liabilities could be attached to the Purchased Assets or the Purchaser, save for Excluded Liabilities and liabilities owing to Governmental Authorities (such as HST or source deductions), trade payables, salaries or other accruals incurred in the Ordinary Course and not yet due, and amounts in respect of the capital lease obligations;
(viii) a certificate from the Vendor confirming the covenants in this Agreement made by the Vendor and the representations and warranties in Article 4 of this Agreement are true and correct in all material respects as at the Closing Date and the Closing Time (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all material respects; and those representations and warranties in respect of Vendor Fundamental Representations, each of which must be true and correct in all respects); it being understood that the Vendor shall be entitled to deliver updated Schedules to this Agreement at Closing;
(hix) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of evidence that all Encumbrances against the Closing Date, in the form of Exhibit L heretoPurchased Assets have been released and discharged;
(ix) a letter from Ernst & Young LLPgeneral conveyance and assumption of liabilities agreement, dated as of duly executed by the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates)Vendor;
(jxi) a letter from PricewaterhouseCoopers LLP, dated as physical possession of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 have been duly satisfied (the "Company's Closing Certificate");
(l) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all directors of the Company, effective as of the Closing Dateany tangible Purchased Assets; and
(nxii) the valid Company shall have delivered the Financial Statements and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect Books and Records to the board of directors of Purchaser, to the Company or extent such Financial Statements and Books and Records relate to the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable lawPurchased Assets.
Appears in 1 contract
Agreements and Documents. Parent and the The Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company an officer of Parent and containing the representation and warranty of the Company Parent that each of the conditions set forth in Sections 6.17.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 7.2 and 6.13 7.4 have been duly satisfied (the "Company's “Parent Closing Certificate"”);
(lb) a certificate of merger Parent’s Secretary in form and substance reasonably acceptable to the Company, attesting to, and attaching thereto: (i) Parent’s Certificate of Incorporation as in effect at the time of the Closing, (ii) Parent’s bylaws as in effect at the time of the Closing; (iii) the incumbency of Parent’s officers executing this Agreement and the other agreements and documents executed by in connection with the Company Merger, (iv) resolutions of the board of directors and stockholders of Parent authorizing the consummation of the Merger and the transactions associated therewith, and (v) a good standing certificate with respect to be filed with Parent from the Secretary of State of the State of Delaware in accordance with Section 1.3Delaware, dated no more than five (5) days before the Closing;
(mc) written resignations a certificate of all directors of Merger Sub’s Secretary in form and substance reasonably acceptable to the Company, effective attesting to, and attaching thereto: (i) Merger Sub’s Certificate of Incorporation as in effect at the time of the Closing DateClosing, (ii) Merger Sub’s bylaws as in effect at the time of the Closing; (iii) the incumbency of Merger Sub’s officers executing this Agreement and the other agreements and documents executed in connection with the Merger, (iv) resolutions of the board of directors and stockholders of Merger Sub authorizing the consummation of the Merger and the transactions associated therewith, and (v) a good standing certificate with respect to Merger Sub from the Secretary of State of the State of Delaware, dated no more than five (5) days before the Closing;
(d) the Parent Stockholders’ Agreement Amendment, executed by Parent and such other parties as may be necessary to amend the Parent Stockholders’ Agreement;
(e) the Parent Registration Rights Agreement Amendment, executed by Parent and such other parties as may be necessary to amend the Parent Registration Rights Agreement;
(f) management rights letters, in the forms attached hereto as Exhibit K, executed by Parent;
(g) the Escrow Agreement, executed by Parent and the Escrow Agent; and
(nh) such other certificates and agreements as reasonably requested by the valid Company and effective termination as delivered by or on behalf of the Effective Time of provisions Parent or Merger Sub at Closing, in Contracts that provide any Person with rights of any nature with respect form and substance reasonably acceptable to the board of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable law.
Appears in 1 contract
Samples: Merger Agreement (Broadsoft Inc)
Agreements and Documents. Parent and At the Company Closing, Sytera shall have received deliver to Sirion copies of the following agreements and documents, each of which shall be executed and delivered by the other relevant parties thereto, and each of which at the Closing shall be in full force and effect:
(a) Affiliate Agreements a voting agreement, in the form of attached hereto as Exhibit F hereto(the “Voting Agreement”), executed by the Persons identified on Exhibit E hereto following holders of Sytera Securities: Avalon Ventures VI, L.P., Avalon Ventures VI GP Fund, LLC, Avalon Ventures VI, L.P., Kxxxxxx Xxxxxx, Jxx Xxxxxxx and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities ActNxxxxx Xxxx;
(b) Employment Agreements substantially an investor rights agreement, in the form of attached hereto as Exhibit H heretoG (the “Investor Rights Agreement”), executed by the individuals identified on Exhibit G heretofollowing holders of Sytera Securities: Avalon Ventures VI, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15L.P., 1999Avalon Ventures VI GP Fund, LLC, Avalon Ventures VI, L.P., Kxxxxxx Xxxxxx, Jxx Xxxxxxx and Nxxxxx Xxxx;
(c) Noncompetition Agreements consulting agreements, in the form of attached hereto as Exhibit I heretoH (each, a “Consulting Agreement”), executed by the individuals identified on Exhibit G heretoeach of Kxxxxxx Xxxxxx and Jxx Xxxxxxx;
(d) a FIRPTA Statement employment agreements, in the form of attached hereto as Exhibit J heretoI (each, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D heretoan “Employment Agreement”), executed by each of Nxxxxx Xxxx, Yxx Xxx, Txx Xxx and Fxxx Xxxxxxx;
(e) a noncompetition and nonsolicitation agreement, in the Merger Stockholdersform attached hereto as Exhibit J (the “Noncompetition Agreement”), executed by the following holders of Sytera Securities: Kxxxxxx Xxxxxx, Jxx Xxxxxxx, Nxxxxx Xxxx, Yxx Xxx and Txx Xxx;
(f) a Registration Rights the Sytera Escrow Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the ClosingSytera Stockholders’ Representative;
(g) an the Sirion Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the ClosingSytera Stockholders’ Representative;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of attached hereto as Exhibit L hereto;K, addressed to Sirion from Paul, Hastings, Jxxxxxxx & Wxxxxx LLP; and
(i) a letter legal opinion relating to certain tax matters in the form attached hereto as Exhibit L, addressed to Sytera from Ernst Paul, Hastings, Jxxxxxxx & Young Wxxxxx LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 have been duly satisfied (the "Company's Closing Certificate");
(l) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all directors of the Company, effective as of the Closing Date; and
(n) the valid and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable law.
Appears in 1 contract
Samples: Merger Agreement (Tenby Pharma Inc)
Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F heretoC, executed by the Persons identified on Exhibit E hereto and by any other each Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of (as that term is used in Rule 145 under the Securities Act);
(b) Employment Agreements Continuity of Interest Certificates substantially in the form of Exhibit H heretoE, executed by the Company's executive officers, directors and 5% stockholders as reflected in the Company's most recent definitive Proxy Statement filed with the SEC;
(c) Employment Agreements in the form of Exhibit I, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999J;
(cd) Noncompetition Agreements in the form of Exhibit I heretoK, executed by the individuals identified on Exhibit G heretoJ;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing DateDate and addressed to Parent, concurring reasonably satisfactory in form and substance to Parent, updating the letter referred to in Section 5.12(a);
(f) separate letters from Ernst & Young LLP, dated as of the Closing Date and addressed to Parent and the Company, respectively, to the effect that Ernst & Young LLP concurs with ParentParent management's management that Parent may account for conclusions as to the Merger as a appropriateness of "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of treatment for the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates)Merger;
(jg) a letter from PricewaterhouseCoopers legal opinion of Pillsbury Madison & Sutro LLP, dated as of the Closing Date, confirming that and concurring with in the Company's management's conclusion thatform of Exhibit L, as well as one or more opinions of counsel for Acquired Corporations other than the Company as may be reasonably requested by Parent, all in a form reasonably satisfactory to Parent;
(h) a legal opinion of Coolxx Xxxward LLP, dated as of the Closing DateDate and addressed to Parent, no conditions exist to the effect that would preclude the Company from becoming Merger will constitute a party reorganization within the meaning of Section 368 of the Code (it being understood that, in rendering such opinion, Coolxx Xxxward LLP may rely upon the Continuity of Interest Certificates and tax representation letters referred to a merger accounted for as a "pooling of interests"in Section 5.11);
(ki) a certificate executed by the Company and containing the representation and warranty on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 6.2 and 6.13 6.4 (to the extent it relates to the Required Company Stockholder Vote) have been duly satisfied (the "Company's Closing Certificate");satisfied; and
(lj) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all officers and directors of the Company, effective as of the Closing Date; and
(n) the valid and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable lawTime.
Appears in 1 contract
Agreements and Documents. Parent and the Company Netivation shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements a legal opinion from counsel for Xxxxxx, USCH and the Stockholders, substantially in the form of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities ActEXHIBIT E1;
(b) Employment Agreements Consulting Agreements, substantially in the forms of EXHIBIT F1 and F2, executed by Xxxx Xxxxxx and Xxxxxxx Xxxxxx;
(c) the Escrow Agreement, substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G heretoEXHIBIT G;
(d) a FIRPTA Statement Tax Representation Letter executed by Xxxxxx and USCH;
(e) a Prospective Offeree Questionnaire substantially in the form of Exhibit J hereto, EXHIBIT H executed by the Company:each Stockholder;
(ef) Stockholder Representation Letters in written resignations of all officers and directors of USCH, effective as of the form of Exhibit D hereto, Closing Date;
(g) a certificate executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company and containing the representation and warranty of each such Stockholder that (i) each of the Company that representations and warranties made by Xxxxxx, USCH and the Stockholders in this Agreement is accurate in all material respects as of the Closing Date as if made on the Closing Date and (ii) the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 this Section 6 have been duly satisfied (the "Company's Stockholders' Closing Certificate");
(lh) a certificate of merger executed by Xxxxxx and USCH containing the Company to be filed with the Secretary representation and warranty of State Xxxxxx and USCH that (i) each of the State of Delaware representations and warranties made by Xxxxxx and USCH in accordance with Section 1.3;
(m) written resignations of this Agreement are accurate in all directors of the Company, effective material respects as of the Closing DateDate as if made on the Closing Date and (ii) the conditions set forth in this Section 6 have been duly satisfied; and
(ni) such other documents, to the valid and effective termination extent such documents are reasonably available or should be reasonably available, as Netivation may reasonably request in good faith for the purpose of (i) evidencing the accuracy of any representation or warranty made by Xxxxxx, USCH or the Stockholders, (ii) evidencing the compliance by Xxxxxx, USCH or the Stockholders with, or the performance by Xxxxxx, USCH or the Stockholders of, any covenant or obligation set forth in this Agreement, (iii) evidencing the compliance with any applicable federal or state securities law, (iv) evidencing the satisfaction of any condition set forth in this Section 6 or (v) otherwise facilitating the consummation or performance of any of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable lawTransactions.
Appears in 1 contract
Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially in the form of Exhibit H G hereto, executed by the individuals identified on Exhibit G H hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G H hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Shareholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger StockholdersShareholders (other than the current holder of the Company Warrant);
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders Shareholders holding at least 9394% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders Shareholders holding at least 9394% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxx Xxxxxxx Xxxxxxxx & XosaxxXxxxxx, xxted dated as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young PricewaterhouseCoopers LLP, dated as of the Closing Date, concurring with Parent's management assertion that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(ij)" shall not apply if the reason that Ernst & Young PricewaterhouseCoopers LLP is unable to deliver the letter referred to in this clause "(ij)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLPthe Company, dated as of the Closing Date, confirming that and concurring with no transaction entered into by the Company's management's conclusion that, as of and no other fact or circumstance relating to the Closing DateCompany, no conditions exist that would preclude will prevent Parent from accounting for the Company from becoming a party to a merger accounted for Merger as a "pooling of interests"" in accordance with generally accepted principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC;
(k) a certificate executed by the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 have been duly satisfied (the "Company's Closing Certificate");
(l) an agreement of merger executed by the Company to be filed with the Secretary of State of the State of California in accordance with Section 1.3 and a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all directors of the Company, effective as of the Closing Date; and;
(n) the valid and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the SubsidiaryCompany, except as provided generally by the Company's certificate articles of incorporation and bylaws or by applicable law; and
(o) the valid and effective termination of the Series B Preferred Stock Purchase Agreement dated as of March 2, 1999, the Shareholder Rights Agreement dated as of March 2, 1999, the Co-Sale and Rights of First Refusal Agreement dated as of March 2, 1999 and the Voting Agreement dated as of March 2, 1999.
Appears in 1 contract
Samples: Merger Agreement (Ebay Inc)
Agreements and Documents. Parent and the Company Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(di) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, certificate duly executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% Selling Shareholders and an executive officer of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company and Seller containing the representation and warranty of the Company such Selling Shareholders and Seller that the conditions set forth in Sections 6.13.2(a), 6.23.2(b), 6.33.2(c), 6.43.2(d), 6.53.2(e)(ii) - 3.2(e)(x), 6.8, 6.10 3.2(g) and 6.13 6.5 have been duly satisfied (the "Company's “Closing Certificate"”);
(lii) a certificate of merger the Escrow Agreement, duly executed by the Company to be filed with Seller, Selling Shareholders, Purchaser and the Secretary of State of the State of Delaware in accordance with Section 1.3Escrow Agent;
(miii) written resignations Purchaser shall have received a duly executed payoff letter from:
(1) Xxxxx Fargo Bank, National Association in form satisfactory to Purchaser, containing: (1) the amounts required to effect the full repayment of Seller’s Indebtedness to Xxxxx Fargo Bank, National Association (excluding the loan provided to ADI Properties, LLC), (2) the wire transfer information of Xxxxx Fargo Bank, National Association, and (3) a confirmation that upon transfer of said funds to said account all directors Encumbrances on the Sold Assets in favor of Xxxxx Fargo Bank, National Association, will be deemed to be removed and canceled and that Xxxxx Fargo Bank, National Association will provide such further documentation as may be required in order to remove and cancel such Encumbrances;
(2) Xxxx Xxxxxx, in form satisfactory to Purchaser, containing: (1) the amounts required to effect the full repayment of Seller’s Indebtedness to Xxxx Xxxxxx under that certain promissory note executed by Seller in favor of Xxxx Xxxxxx and (2) the wire transfer information for a wire transfer of such amounts to Xxxx Xxxxxx;
(3) Avnet, in form satisfactory to Purchaser, containing: (1) the amounts required to effect the full repayment of Seller’s Indebtedness to Avnet under that certain promissory note executed by Seller in favor of Avnet and (2) the wire transfer information for a wire transfer of such amounts to Avnet;
(iv) IP assignments and releases, in the form of Exhibit C attached hereto, duly executed by all past employees and consultants of the Seller, other than as listed in Schedule 3.2(e)(iv). in addition, any Business Employee who is not a Transferred Employee and who hasn’t executed an IP assignment and release in favor of the Seller to the satisfaction of the Purchaser (which IP assignment and release has been Made Available to the Purchaser) will also execute an IP assignment and release substantially in the form of Exhibit C;
(v) eighty percent or more of the designated Key Transferred Employees as listed on Schedule 3.2(e)(v) and eighty percent or more of the other Business Employees have accepted employment with the Purchaser as of Closing and have entered into new employment agreements and non-competition, confidentiality, assignment of IP rights agreements at Closing in form satisfactory to the Purchaser (including a waiver of prior liabilities);
(vi) Mr. Xxxxx Xxxxx has entered into an employment agreement and non-competition, confidentiality, assignment of IP rights agreements with Silicom, Inc. in the form attached hereto as Exhibit D;
(vii) Purchaser shall have received evidence satisfactory to Purchaser that all consents of third parties set forth on Exhibit E and in the manner set forth therein shall have been obtained and shall be in full force and effect;
(viii) Purchaser shall have received evidence satisfactory to Purchaser that all Persons who are eligible to receive compensation under the Seller's phantom stock plan have agreed in writing to the accuracy of the table setting forth their respective portion of said compensation, which is attached hereto as Exhibit F. Said evidence will also show the agreement of the Seller and Selling Shareholders to such statements;
(ix) a legal opinion executed by counsel for the Company, effective as in substantially the form of Exhibit G;
(x) all other documents, instruments and writings required to be delivered by Seller or the Selling Shareholders at or prior to the Closing Date pursuant to this Agreement and any of the Closing Date; transactions underlying this Agreement, and
(n) the valid , all other documents, instruments, declarations, affidavits and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally writings reasonably requested by the Company's certificate of incorporation and bylaws or by applicable lawPurchaser that are reasonably necessary to consummate the transactions contemplated hereby.
Appears in 1 contract
Agreements and Documents. Parent and the Company shall will have received the following agreements and documents, each of which shall will be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed on behalf of Parent by the Company and containing the representation and warranty of the Company its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 6.6 and 6.13 6.7 have been duly satisfied satisfied;
(b) a Joint Company Board of Director’s and Company Majority Shareholders’ Written Consent to Merger, among other provisions thereof, in the form of Exhibit 5.4(b) executed by all members of Company Board of Directors and all of Company Majority Shareholders;
(c) resolutions of the Boards of Directors of Parent and of Merger Subsidiary, certified by the secretary of Parent, approving the transactions contemplated by this Agreement (by Parent as a Party and as the sole shareholder of Merger Subsidiary), including the Merger, the issuance of the Merger Consideration and the matters referred to in Section 1.8(b) of this Agreement or as otherwise required to complete the transactions contemplated hereby;
(d) a Company Shareholders’ Representations and Warranties executed by all Company Shareholders owning Company Common Stock and being entitled to receive Parent Common Stock under the Merger, approving the Merger and agreeing, among other provisions thereof, to a minimum holding period of such Parent Common Stock of the greater of the holding period required by SEC Rule 144 or twelve (12) months from the Effective Date, which, if not executed and delivered by the respective Company Shareholders to Parent within thirty (30) days of the dissenters’ notice (the "Company's Dissenters’ Notice”) to Company Shareholders required by Section 16-10a-1322 of the Utah Act (assuming the Merger is first approved by the Company Majority Shareholders and the Closing Certificate"has taken place and there is an Effective Date), will automatically result in the exercise of Dissenters’ Rights by any of Company Shareholders for any failure on the part of any such holder to execute and deliver this instrument, in the form of Exhibit 5.4(c);
(le) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all directors of the CompanyParent shareholders, effective as of the Closing Date; and
(n) the valid and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board extent specifically indicated in Schedule 6.11, shall execute and deliver the Lock-Up/Leak-Out Agreement in the form of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable lawExhibit 5.4(d).
Appears in 1 contract
Samples: Merger Agreement (Gulf & Orient Steamship Company, Ltd.)
Agreements and Documents. Parent and the Company Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Escrow Agreement in the form of EXHIBIT E, executed by Parent, QSG and the Agent;
(b) Affiliate Agreements in the form of Exhibit F heretoEXHIBIT F-2, executed by the Persons identified on Exhibit E hereto EXHIBIT F-1 and by any other Person who could reasonably be deemed to be an "affiliate" of the Company QSG for purposes of the Securities Act;
(bc) Employment Lock-Up Agreements substantially in the form of Exhibit H heretoEXHIBIT G, executed by each Shareholder;
(d) Employment Agreements in the form of EXHIBIT I, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999EXHIBIT H;
(ce) Noncompetition Agreements Agreements, in the form of Exhibit I heretoEXHIBIT J, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger StockholdersEXHIBIT H;
(f) a Registration Rights Agreement Parent shall have received an Investment Representation and Appointment of Agent Letter in the form of Exhibit K hereto, attached hereto as EXHIBIT L executed by Merger Stockholders holding at least 93% each shareholder of the outstanding shares QSG and each holder of capital stock of the Company immediately prior to the Closinga QSG Option and QSG Warrant (excluding Petra Capital, LLC);
(g) an Escrow Agreement a Release, in the form of Exhibit C heretoEXHIBIT K, executed by the Escrow Agent each shareholder of QSG and Merger Stockholders holding at least 93% each holder of the outstanding shares of capital stock of the Company immediately prior to the Closinga QSG Option and QSG Warrant (excluding Petra Capital, LLC);
(h) confidential invention and assignment agreements, reasonably satisfactory in form and content to Parent, executed by all employees of QSG and by all consultants and independent contractors to QSG who have not already signed such agreements;
(i) the statement referred to in Section 5.7, if applicable, executed by QSG;
(j) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx Thoits, Love, Xxxxxxxxxxx & XosaxxXxXxxx, xxted counsel to QSG dated as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests"EXHIBIT M;
(k) a certificate executed by the Company President and containing Chief Financial Officer of QSG to the representation and warranty effect that each of the Company representations and warranties set forth in Section 2 is accurate in all material respects Closing (without giving effect to any "Material Adverse Effect" or other materiality qualifications, or any similar qualifications, contained or incorporated directly or indirectly in such representations and warranties) as of the Closing Date as if made on the Closing Date and that the conditions set forth in Sections 6.17.1, 6.27.2, 6.37.3, 6.47.4, 6.5, 6.8, 6.10 7.5 and 6.13 7.6 have been duly satisfied (the "Company's Closing Certificate")satisfied;
(l) a certificate of merger executed by the Company to be filed with the Secretary of State QSG dated as of the State Closing Date, certifying as to the following matters: (i) the adoption of Delaware in accordance with Section 1.3resolutions by QSG's board of directors and shareholders approving the transactions contemplated by this Agreement; (ii) the articles of incorporation of QSG; (iii) the bylaws of QSG; (iv) the incumbency of officers of QSG who are signatories to this Agreement or any of the exhibits to this agreement; and (v) such other matters as Parent may reasonably request;
(m) a certificate executed by each Shareholder to the effect that each of the representations and warranties set forth in Sections 2 and 3 is accurate as of the Closing Date as if made on the Closing Date (together with the certificates required by Sections 7.5(k) and 7.5(l) hereof, the "Closing Certificates");
(n) written resignations of all directors of the CompanyQSG, effective as of the Closing DateEffective Time; and
(no) documentation satisfactory to Parent and its counsel demonstrating the valid and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights cancellation and/or conversion of any nature with respect warrants issuable to Silicon Valley Bank (including the board of directors of the Company or the Subsidiary, except terms thereof) as provided generally by the Company's certificate of incorporation and bylaws or by applicable lawset forth in Section 1.7 hereof.
Appears in 1 contract
Samples: Merger Agreement (Zamba Corp)
Agreements and Documents. Parent and the Company Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated “good standing” certificate for the Company issued as of a date not more than 10 days before the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken Date by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 have been duly satisfied (the "Company's Closing Certificate");
(l) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3Arizona;
(mii) written resignations an extended reporting period endorsement under the Company’s existing directors’ and officers’ liability insurance coverage (the “D&O Policy”) for the Company’s directors and officers in a form acceptable to Purchaser, which shall provide such directors and officers with coverage for six years following the Closing of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors’ and officers’ liability insurance coverage presently maintained by the Company;
(iii) a certificate duly executed by each Seller certifying that each of the conditions specified in subsections (a) and (b) of this Section 6.02 (to the extent related to such Seller) has been satisfied;
(iv) a certificate duly executed by an officer of the Company certifying that (A) each of the conditions specified in subsections (a) and (b) of this Section 6.02 (to the extent related to the Company) and (B) subsection (c) of this Section 6.02, has been satisfied;
(v) payoff letters executed, as necessary, to evidence the full payment of any Funded Indebtedness, authorization to terminate any Liens associated therewith (the “Payoff Letters”), which Payoff Letters shall be in form and substance reasonably acceptable to Purchaser and shall have been provided by the Company to Purchaser at least five Business Days prior to the Closing;
(vi) statements, invoices or other documentation reasonably acceptable to Purchaser setting forth the amounts of all directors Seller Transaction Expenses required to be paid at Closing (which shall include the identity of each recipient, dollar amounts and wire instructions and any other information necessary for Purchaser and/or the Company, effective Company to effect the final payment in full thereof at Closing);
(vii) dated as of the Closing Date, a duly completed and executed affidavit from each Seller, prepared in accordance with Treasury Regulations Section 1.1445-2(b) and Section 1446(f) of the Code, reasonably acceptable to Purchaser and certifying such Seller’s non‑foreign status;
(viii) a certificate of the secretary of the Company in form and substance reasonably satisfactory to Purchaser, certifying as to the terms and effectiveness of the Company Certificate of Formation and the Company Operating Agreement and the resolutions of the manager of the Company approving this Agreement and the transactions contemplated hereby;
(ix) an Assignment Agreement, duly executed by each Seller;
(x) the Invention Assignment Agreement, duly executed by Fox;
(xi) the Closing Consideration Certificate in accordance with Section 1.05; and
(nxii) the valid and effective termination as of the Effective Time of provisions Closing Bonus Schedule in Contracts that provide any Person accordance with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable lawSection 5.07(c).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Cheesecake Factory Inc)
Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements fully executed escrow agreement to be entered into with the Escrow Agent setting forth the terms of the Trust Shares and the Escrow Shares (the “Escrow Agreement”) in the form of attached hereto as Exhibit F heretoE, executed by which shall contain, without limitation, provisions regarding the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" following: (i) the allocation of the Company for purposes Trust Shares to the Sellers and Former Option Holders in accordance with Schedule A and (ii) the release of the Securities Act;Escrow Shares on the first anniversary of the Closing Date.
(b) amended Employment Agreements substantially in the form of Exhibit H hereto, and Nondisclosure Agreements executed by the individuals identified Founders (to reflect the terms of the letter exchanged between the Parties on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999date hereof);
(c) Noncompetition Agreements confidential invention and assignment agreements, reasonably satisfactory in the form of Exhibit I heretoand content to Parent, executed by all employees of the individuals identified on Exhibit G heretoTarget Companies and by all consultants and independent contractors to the Company and Target Companies who have not already signed such agreements;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxxfrom Gross, xxted as of the Closing DateKleinhendler, Hodak, Halevy and Xxxxxxxxx (“Company Israeli Counsel”), in the form of attached hereto as Exhibit L hereto;
(i) a letter from Ernst & Young LLPF, and addressed to the Parent and dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(je) a letter from PricewaterhouseCoopers LLPcertificate executed by: (i) two officers of the Target Companies), dated (ii) the Sellers and (iii) each Founder and on behalf of each Seller, all certifying that each of the representations and warranties set forth in Section 2 is accurate in all material respects as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, Date as of if made on the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company Date and containing the representation and warranty of the Company that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 Section 6 have been duly satisfied (the "Company's “Company Closing Certificate"”);
(lf) a certificate of merger Lock-up agreements executed by the Company Sellers in the form and substance reasonably satisfactory to be filed with counsel for Parent which shall contain terms and conditions standard and customary in transactions of this nature, including a six (6) month restriction on the Secretary sale, pledge, assignment, transfer or disposition of State of the State of Delaware in accordance with Section 1.3Ordinary Shares by such Seller;
(mg) written resignations of all directors of the CompanyTarget Companies including from any committee thereof, effective as of the Closing Date; and
(nh) the valid and effective termination as certificates representing all of the Effective Time Target Shares accompanied by share transfer deeds duly executed for transfer to the Parent by the Seller.
(i) written waivers from each of provisions in Contracts that provide any Person with rights the Former Option Holders of any nature with respect right to the board of directors acquire shares of the Company or the Subsidiary, except as provided generally by the Israeli Target Company's certificate of incorporation and bylaws or by applicable law.
Appears in 1 contract
Samples: Share Purchase Agreement (Elbit Vision Systems LTD)
Agreements and Documents. Parent and the Company shall Merger Subsidiary will have received the following agreements and documents, each of which shall will be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed on behalf of Company by the Company and containing the representation and warranty of the Company its Chief Executive Officer confirming that the conditions set forth in Sections 6.15.1, 6.25.2, 6.35.3, 6.45.5, 6.5, 6.8, 6.10 5.6 and 6.13 5.7 have been duly satisfied (the "Company's Closing Certificate")satisfied;
(lb) a certificate Joint (in the form of merger Exhibit 5.4(b)) or Singular (respectively, in the form of Exhibit 5.4(b)(i) and Exhibit 5.4(b)(ii)) Company Board of Director’s and Company Majority Shareholders’ Written Consent to Merger, among other provisions thereof, executed by the all members of Company to be filed with the Secretary Board of State Directors and all of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all directors of the Company, effective as of the Closing DateCompany Majority Shareholders; and
(nc) a Company Shareholders’ Representations and Warranties executed by all Company Shareholders owning Company Common Stock and being entitled to receive Parent Common Stock under the valid Merger, approving the Merger and effective termination as agreeing, among other provisions thereof, to a minimum holding period of such Parent Common Stock of the greater of the holding period required by SEC Rule 144 or twelve (12) months from the Effective Time Date, which, if not executed and delivered by the respective Company Shareholders to Parent within thirty (30) days of provisions the Parent Dissenters’ Rights notice the Dissenters’ Notice to Company Shareholders required by Section 16-10a-1322 of the Utah Act (assuming the Merger is first approved by the Company Majority Shareholders and the Closing has taken place and there is an Effective Date), will automatically result in Contracts that provide the exercise of Dissenters’ Rights by any Person with rights of Company Shareholders for any failure on the part of any nature with respect such holder to execute and deliver this instrument, in the board form of directors Exhibit 5.4(c) within thirty (30 days of the such Dissenters’ Notice.
(d) All Lock-Up/Leak-Out Agreements to which any Company or the SubsidiaryShareholder is party shall be assumed by Parent and shall remain in full force and effect, except without qualification, as provided generally by the Company's certificate of incorporation to any Company Shareholder party to any such Lock-Up/Leak-Out Agreement and bylaws or by applicable lawParent Common Stock will be substituted for Company Common Stock thereunder.
Appears in 1 contract
Samples: Merger Agreement (Java Express Inc)
Agreements and Documents. Parent Buyer and the Company Merger Sub shall have received the following agreements and documents, each of which shall be in full force and effect:
(ai) Affiliate a certificate executed on behalf of the Company by its Chief Executive Officer certifying (A) the Company Articles in effect, (B) the Company Board’s resolutions approving this Agreement and the Merger and treatment of payments to COP Participants hereunder (including reallocation), (C) evidence of the receipt of the Company Shareholder Approval, and (D) the incumbency of each of the Company’s officers authorized to sign this Agreement on behalf of the Company, in a form reasonably acceptable to Buyer;
(ii) the Employment Agreement shall be in full force and effect (and the employee thereto stands ready, willing and able to perform with the Acquired Companies);
(iii) each of the Non-Competition and Non-Solicitation Agreements shall be in full force and effect;
(iv) the form of Exhibit F heretoPayoff Letters, executed by the Persons identified on Exhibit E hereto applicable holders of Closing Indebtedness to be paid at Closing, together with any necessary UCC authorizations or other releases as may be reasonably required to evidence the satisfaction of such Closing Indebtedness and the release of all Encumbrances in connection therewith and evidence of release of all other Encumbrances (other than Permitted Encumbrances) in form and substance reasonably acceptable to Buyer;
(v) good standing certificates (or foreign equivalents) for the Subsidiary from the Delaware Secretary of State, dated no earlier than twenty (20) days prior to the Closing Date;
(vi) the Closing Allocation Schedule, certified as such by any other Person who could reasonably the Chief Executive Officer of the Company; provided, however, that such receipt shall not be deemed to be an "affiliate" of agreement by Buyer that the Company for purposes of Closing Allocation Schedule is accurate and shall not affect, in any manner whatsoever, any Indemnified Party’s right to indemnification, compensation or reimbursement pursuant to Section 9.2 if the Securities ActClosing Allocation Schedule is not accurate;
(bvii) Employment all Ancillary Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G heretoapplicable parties;
(viii) the Estimated Closing Statement certified by the Company’s Chief Executive Officer; 505026976.1
(ix) transfer documents duly executed by the owners of xxxxxxxxxx.xxx, provided that xxxxxxxxx.xxx and the execution copies xxxxxxxxxx.xxx transferring each such domain name to the Surviving Company and providing for the Surviving Company’s full control of each such employee's agreement have been provided domain name post-Closing, each in a form reasonably satisfactory to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 have been duly satisfied (the "Company's Closing Certificate");
(l) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all directors of the Company, effective as of the Closing DateBuyer; and
(nx) the valid assignments of U.S. patent applications 62/088,034 and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect 14/959,166 from RealMatch, Inc. to the board Company, each in a form reasonably satisfactory to Buyer for purposes of directors of filing with the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable lawUSPTO.
Appears in 1 contract
Agreements and Documents. Parent and the The Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company an officer of Parent and containing the representation and warranty of the Company Parent that each of the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 8.1 and 6.13 8.2 have been duly satisfied (the "Company's “Parent Closing Certificate"”);
(lb) a certificate of merger Parent’s Secretary in form and substance reasonably acceptable to the Company, attesting to, and attaching thereto: (i) Parent’s Certificate of Incorporation as in effect at the time of the Closing, (ii) Parent’s bylaws as in effect at the time of the Closing; (iii) the incumbency of Parent’s officers executing this Agreement and the other agreements and documents executed by in connection with the Company Merger, (iv) resolutions of the board of directors and stockholders of Parent authorizing the consummation of the Merger and the transactions associated therewith, and (v) a good standing certificate with respect to be filed with Parent from the Secretary of State of the State of Delaware in accordance with Section 1.3Delaware, dated no more than five (5) days before the Closing;
(mc) written resignations a certificate of all directors of Merger Sub’s Secretary in form and substance reasonably acceptable to the Company, effective attesting to, and attaching thereto: (i) Merger Sub’s Certificate of Incorporation as in effect at the time of the Closing DateClosing, (ii) Merger Sub’s bylaws as in effect at the time of the Closing; (iii) the incumbency of Merger Sub’s officers executing this Agreement and the other agreements and documents executed in connection with the Merger, (iv) resolutions of the board of directors and stockholders of Merger Sub authorizing the consummation of the Merger and the transactions associated therewith, and (v) a good standing certificate with respect to Merger Sub from the Secretary of State of the State of Delaware, dated no more than five (5) days before the Closing;
(d) the Parent Stockholders’ Agreement Amendment, executed by Parent and such other parties as may be necessary to amend the Parent Stockholders’ Agreement;
(e) the Parent Registration Rights Agreement Amendment, executed by Parent and such other parties as may be necessary to amend the Parent Registration Rights Agreement;
(f) the Escrow Agreement, executed by Parent and the Escrow Agent; and
(ng) such other certificates and agreements as reasonably requested by the valid Company and effective termination as delivered by or on behalf of the Effective Time of provisions Parent or Merger Sub at Closing, in Contracts that provide any Person with rights of any nature with respect form and substance reasonably acceptable to the board of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable law.
Appears in 1 contract
Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(aA) Affiliate Agreements in the form of Exhibit F heretoC, executed by the Persons identified on Exhibit E hereto and by any other each Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of (as that term is used in Rule 145 under the Securities Act);
(b) Employment Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999;
(cB) Noncompetition Agreements in the form of Exhibit I heretoD, executed by the individuals identified on Exhibit G hereto;Xxxxxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxxx; 51.
(dC) a FIRPTA Statement Releases in the form of Exhibit J heretoE, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D heretoXxxxxxxx X. Xxxxxxx, executed by each of the Merger StockholdersXxxxxxxx X. Xxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxx Xxxxxx and Xxxxxxx Xxxxxxxxx;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(iD) a letter from Ernst & Young Xxxxxx Xxxxxxxx LLP, dated as of the Closing DateDate and addressed to Parent and the Company, concurring reasonably satisfactory in form and substance to Parent, updating the "comfort" letter referred to in Section 5.12;
(E) a letter from Xxxxxx Xxxxxxxx LLP, dated as of the Closing Date and addressed to the Company, reasonably satisfactory in form and substance to Parent and PricewaterhouseCoopers LLP, to the effect that, after reasonable investigation, Xxxxxx Xxxxxxxx LLP is not aware of any fact concerning the Acquired Corporations or any of the stockholders or affiliates of the Acquired Corporations that could preclude the Company from being a "poolable entity" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC;
(F) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent, to the effect that PricewaterhouseCoopers LLP concurs with Parent's management management's conclusion that Parent may account for the Merger may be accounted for as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates)SEC;
(jG) a letter from PricewaterhouseCoopers LLP, legal opinion of Xxxxxx Godward LLP dated as of the Closing DateDate and addressed to Parent, confirming to the effect that and concurring with the Company's management's conclusion Merger will constitute a reorganization within the meaning of Section 368 of the Code (it being understood that, as of in rendering such opinion, Xxxxxx Godward LLP may rely upon the Closing Date, no conditions exist that would preclude the Company from becoming a party tax representation letters referred to a merger accounted for as a "pooling of interests"in Section 5.11);
(kH) a certificate executed by the Company and containing the representation and warranty on behalf of the Company by its Chief Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.86.7, 6.10 6.10, 6.11 and 6.13 6.12 have been duly satisfied (the "Company's Closing Certificate");satisfied; and
(lI) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all officers and directors from positions as an officer and director of each of the Company, Acquired Corporations effective as of the Closing Date; and
(n) the valid and effective termination as of the Effective Time (it being understood that such resignations shall not constitute a voluntary or an "Involuntary Termination" under the Change of provisions Control Agreements and shall not effect in Contracts that provide any Person with manner any rights of any nature with respect to the board of directors officer of the Company or the Subsidiary, except as provided generally by any of the Company's certificate obligations under the Change of incorporation and bylaws or by applicable lawControl Agreements).
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Consilium Inc)
Agreements and Documents. Parent and the Company Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements original share certificates representing all Purchased Shares (or evidence of cancellation thereof or an affidavit regarding missing stock certificates) and instruments of transfer for all Purchased Shares properly executed in the form favor of Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by Purchaser (or any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities Act;
that Purchaser nominates); (b) Employment Agreements substantially in the form shareholder register (i) reflecting the conversion of Exhibit H hereto, executed by all Company Preference Shares into Company Ordinary Shares upon the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided Closing pursuant to the Company Conversion Event and reflecting the Secondary Share Purchase by Purchaser and (ii) showing that Purchaser owns all of the Purchased Shares and there are no later than the close of business Encumbrances on November 15, 1999;
such shares; (c) Noncompetition Agreements in a spreadsheet containing the form of Exhibit I heretofollowing information (such spreadsheet, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
“Sellers’ Consideration Spreadsheet”): (i) (A) the aggregate amount of all Company Transaction Expenses, together with a letter from Ernst & Young LLPdetailed breakdown thereof specifying for each such Company Transaction Expense the dollar amount thereof (determined using the Specified Exchange Rate, dated as of applicable) and whether it has already been paid or remains to be paid, (B) the Deductible Company Transaction Expense Amount, (C) the Closing DateDebt Amount, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 have been duly satisfied (the "Company's Closing Certificate");
(l) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all directors of the Company, effective as of the Closing Date; and
(nD) the valid Transaction Bonus Amount, (E) the Deductible Transaction Bonus Amount, (F) the Specified Warrant Cancelation Payment Amount, (G) the Fully Diluted Share Number, (H) the Price Per Secondary Share, (I) the Purchaser Secondary Ownership Percentage, (J) the Apportioned Litigation Reserve Amount, (K) the Aggregate Repurchase Price, (L) the Secondary Specified Fraction and effective termination as of (M) the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable law.Secondary Allocation Gross-Up Factor;
Appears in 1 contract
Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements in the form of Exhibit F heretoB, executed by the Persons identified on Exhibit E hereto and by any other each Person who could is reasonably be deemed determined by the Company to be an "affiliate" of the Company for purposes of (as that term is used in Rule 145 promulgated under the Securities Act);
(b) Employment Agreements substantially the statement referred to in the form of Exhibit H heretoSection 5.15(a), executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999Company;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young Xxxxxx Xxxxxxxx LLP, dated as of the Closing DateDate and addressed to the Company, concurring reasonably satisfactory in form and substance to Parent and Ernst & Young LLP, to the effect that, after reasonable investigation, Xxxxxx Xxxxxxxx LLP concurs with ParentCompany's management management's conclusion that Parent may account the Company could be a combining entity in a transaction accounted for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates)SEC;
(jd) a letter from PricewaterhouseCoopers Ernst & Young LLP, dated as of the Closing Date and addressed to Parent, reasonably satisfactory in form and substance to Parent and Xxxxxx Xxxxxxxx LLP, regarding such firm's concurrence with Parent's management's conclusions as to the appropriateness of "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC;
(e) a legal opinion of Xxxxxx Godward LLP, dated as of the Closing Date, confirming in the form attached hereto as Exhibit C; provided, however, that and concurring with the Company's management's conclusion such opinion may reflect changes or exceptions that, considered collectively, would not have a material adverse effect on the consummation of the transactions contemplated hereby and have not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired Corporations taken as a whole.
(f) a legal opinion of Dechert Price & Xxxxxx, dated as of the Closing Date, no conditions exist to the effect that would preclude the Company from becoming Merger will constitute a party to a merger accounted for as a "pooling reorganization within the meaning of interests";
(k) a certificate executed by the Company and containing the representation and warranty Section 368 of the Company that Code. In rendering such opinion, such firm may rely on such representations, warranties and certificates as it deems reasonable or appropriate under the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 have been duly satisfied (the "Company's Closing Certificate");
(l) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all directors of the Company, effective as of the Closing Date; and
(n) the valid and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable lawcircumstances.
Appears in 1 contract
Samples: Merger Agreement (Pharmacopeia Inc)
Agreements and Documents. Parent and the Company shall have received the following agreements and documents, executed as appropriate, each of which shall be in full force and effect:
(a) Affiliate Agreements evidence of the successful filing under the DGCL of Company’s amended Certificate of Amendment in substantially the form of attached as Exhibit F hereto, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" of the Company for purposes of the Securities ActH;
(b) Employment Agreements evidence of the successful filing under the DGCL of the Amended and Restated Certificate of Incorporation of the Surviving Corporation in substantially in the form of attached as Exhibit H hereto, executed by the individuals identified on Exhibit G hereto, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999I;
(c) Noncompetition Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger Stockholders;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx Xxxx Xxxx Xxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young Freidenrich LLP, dated as of the Closing Date, concurring with Parent's management that Parent may account for in substantially the Merger form attached hereto as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates)Exhibit N;
(jd) a letter from PricewaterhouseCoopers LLPthe Executive Employment Agreements in substantially the form attached hereto as Exhibit E, dated as executed and delivered by each of the Closing Date, confirming that Xxxx Xxxxxx and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests"Xxx Xxxxxx;
(ke) a certificate the Consulting Agreement in substantially the form attached hereto as Exhibit F, executed and delivered by the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 and 6.13 have been duly satisfied (the "Company's Closing Certificate")Xx. Xxxxxx Xxxx;
(lf) a certificate of merger executed by the Company to be filed with Escrow Agreement substantially in the Secretary of State of the State of Delaware in accordance with Section 1.3form attached hereto as Exhibit P;
(mg) written resignations of all directors of the Company, Company effective as of the Closing DateEffective Time;
(h) a certificate signed on behalf of the Company by the Chief Executive Officer and any other officer of the Company representing that the conditions set forth in Sections 6.1 and 6.2 have been duly satisfied (the “Company Compliance Certificate");
(i) a list setting forth the name and address of each Company Equityholder entitled to receive the Merger Consideration pursuant to Section 1.5;
(j) a list setting forth the name and address of each holder of Company Preferred Warrants and Company Common Warrants;
(k) an acknowledgement agreement with terms and conditions reasonably satisfactory to Parent executed and delivered by each of Management, Neuroscience Partners and Xxxx Xxxxx acknowledging and agreeing to be bound by the terms of this Agreement;
(l) the Company Affiliate Agreements in substantially the form attached hereto as Exhibit D, executed and delivered by each Company Affiliate, and no breach of any Company Affiliate Agreement shall have occurred or be continuing; and
(nm) the valid Support Agreements in substantially the form attached hereto as Exhibit C, executed and effective termination as of delivered by the Effective Time of provisions in Contracts that provide any Person with rights Support Signatories, and no breach of any nature with respect to the board of directors of the Company Support Agreement shall have occurred or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable lawbe continuing.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (MIGENIX Inc.)
Agreements and Documents. Parent and the Company shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Agreements the Escrow Agreement, executed by the Stockholders’ Representative and the Escrow Agent;
(b) an Agreement and Amendment to Employment Agreement in the form of Exhibit F heretoE-1, executed by the Persons identified on Exhibit E hereto Xxxxxx Xxxxxxxx, an Agreement and by any other Person who could reasonably be deemed Amendment to be an "affiliate" of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially Agreement in the form of Exhibit H heretoE-2, executed by Xx. Xxxxxx Xxxxxxx, and an Agreement and Amendment to Employment Agreement in the individuals identified on form of Exhibit G heretoE-3, provided that the execution copies of each such employee's agreement have been provided to the Company no later than the close of business on November 15, 1999executed by Xxxxxxxx Xxxxx;
(c) a Noncompetition Agreements Agreement in the form of Exhibit I heretoF, executed by the individuals identified on Exhibit G heretoeach of Xxxxxx Xxxxxxxx, Xx. Xxxxxx Xxxxxxx and Xxxxxxxx Xxxxx;
(d) a FIRPTA Statement Release in the form of Exhibit J heretoG, dated as of the Closing Date, executed by each Key Stockholder and each officer and director of each of the Company:Acquired Corporations;
(e) Stockholder Representation Letters in the form of Exhibit D hereto, executed by each of the Merger StockholdersClosing Payment Schedule;
(f) a Registration Rights Agreement the statement referred to in the form of Exhibit K heretoSection 6.8(a), executed by Merger Stockholders holding at least 93% on behalf of the outstanding shares of capital stock of the Company immediately prior to the ClosingCompany;
(g) an Escrow Agreement in a legal opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the form of Exhibit C heretoCompany, executed by the Escrow Agent and Merger Stockholders holding at least 93% dated as of the outstanding shares of capital stock of Closing Date and addressed to Parent and the Company immediately prior Company, addressing the matters set forth in Schedule 7.9(g) and containing no exceptions, assumptions or qualifications that are not customarily included in legal opinions relating to transactions similar to the ClosingMerger;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx Morris, Nichols, Arsht & XosaxxXxxxxxx, xxted Delaware counsel to the Company, dated as of the Closing DateDate and addressed to Parent and the Company, addressing the matters set forth in Schedule 7.9(h) and containing no exceptions, assumptions or qualifications that are not customarily included in legal opinions relating to transactions similar to the form of Exhibit L heretoMerger;
(i) a letter from Ernst & Young LLPcertificate, dated as executed on behalf of the Closing Date, concurring with Parent's management that Parent may account for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies Company by an officer of the SEC (providedCompany, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);
(j) a letter from PricewaterhouseCoopers LLP, dated as of the Closing Date, confirming that and concurring with the Company's management's conclusion that, as of the Closing Date, no conditions exist that would preclude the Company from becoming a party to a merger accounted for as a "pooling of interests";
(k) a certificate executed by the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.17.1 (as it relates to the representations and warranties of the Company), 6.27.2 (as it relates to the covenants and obligations of the Company), 6.37.3, 6.47.4, 6.57.5. 7.7, 6.87.8, 6.10 7.10, 7.12, 7.13, 7.14 and 6.13 7.15 have been duly satisfied;
(j) a certificate, executed by the Key Stockholders, containing the representation and warranty of each Key Stockholder that the conditions set forth in Sections 7.1 (as it relates to the representations and warranties of such Key Stockholder) and 7.2 (as it relates to the covenants and obligations of such Key Stockholder) have been duly satisfied (the "Company's Closing “Key Stockholder Certificate"”);
(l) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(mk) written resignations of all officers and directors of the CompanyAcquired Corporations, effective as of the Closing DateEffective Time; and
(nl) the valid and effective termination such other documents as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally may be reasonably requested by the Company's certificate of incorporation and bylaws or by applicable lawParent.
Appears in 1 contract
Agreements and Documents. Parent and the Company The Purchaser shall have received the following agreements and documents, each of which shall be in full force and effect:
(a) Affiliate Copies of resolutions of the General Meeting of the Shareholders of the Seller and the Board of Directors of Seller, certified by the Chairman of the Board of Directors of the Seller authorizing the execution, delivery and performance of this Agreement and the transactions contemplated hereby.
(b) The Employment Agreements in the form of Exhibit F heretoD, executed by the Persons identified on Exhibit E hereto and by any other Person who could reasonably be deemed to be an "affiliate" all but four (or less) of the Company for purposes of the Securities Act;
(b) Employment Agreements substantially in the form of Exhibit H hereto, executed by the individuals identified on Exhibit G heretoC, provided however that the execution copies of each Employees who shall not sign such employee's agreement have been provided Employment Agreement are not identified on Exhibit C as Employees whose employment by the Purchaser is a condition to the Company no later than the close of business on November 15, 1999Closing;
(c) Noncompetition Non-competition and non-solicitation Agreements in the form of Exhibit I hereto, executed by the individuals identified on Exhibit G hereto;
(d) a FIRPTA Statement in the form of Exhibit J hereto, executed by the Company:
(e) Stockholder Representation Letters in the form of Exhibit D heretoE, executed by each of the Merger Stockholdersindividuals identified on Exhibit C and by Mr. Dmitry Goroshevsky;
(d) confidential invention and assignment agreements, reasonably satisfactory in form and content to the Purchaser, executed by all of the Seller's and Subsidiary's (1) employees who have not already signed such agreement, and (2) consultants and independent contractors who have not already signed such agreement; provided that no such agreements will be required of the Persons identified in clauses (1) and (2) whose jobs or services provided did not materially relate to the Purchased Assets;
(e) fully executed Escrow Agreement (the "Escrow Agreement") in the form and substance reasonably satisfactory to counsel for the Purchaser and counsel for the Seller, which shall contain, without limitation, provisions regarding the following: (i) the release of the Escrow Shares upon the termination of a nine (9) month period commencing on the Closing Date, (ii) provisions enabling the Seller to instruct the Escrow Agent as to the sale of the Escrow Shares (with the proceeds of such sale(s) to be deposited in the Escrow in lieu of the Escrow Shares), and (iii) such other terms and conditions as are standard and customary in transactions of this nature;
(f) a Registration Rights Agreement in the form of Exhibit K hereto, executed by Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(g) an Escrow Agreement in the form of Exhibit C hereto, executed by the Escrow Agent and Merger Stockholders holding at least 93% of the outstanding shares of capital stock of the Company immediately prior to the Closing;
(h) a legal opinion of Wilsxx Xxxxxxx Xxxxxxxx Ravillan, Volovelsky, Xxxxxxxx, Xxxx & Xosaxx, xxted as of the Closing Date, in the form of Exhibit L hereto;
(i) a letter from Ernst & Young LLPCo., dated as of the Closing Date, concurring with Parent's management that Parent may account in a form reasonably satisfactory to counsel for the Merger as a "pooling of interests" in accordance with generally accepted accounting principles, Accounting Principles Board Opinion No. 16 and all published rules, regulations and policies of the SEC (provided, however, that the condition referred to in this clause "(i)" shall not apply if the reason that Ernst & Young LLP is unable to deliver the letter referred to in this clause "(i)" is due solely to actions taken by Parent or its affiliates);Purchaser; and
(jg) a letter from PricewaterhouseCoopers LLPcompliance certificate, dated as of the Closing Date, confirming that executed by Seller's duly authorized representative certifying that: (1) each of the representations and concurring with the Company's management's conclusion that, warranties set forth in Section 3 is accurate in all respects as of the Closing Date, no conditions exist that would preclude Date as if made on the Company from becoming a party to a merger accounted for as a "pooling of interests";
Closing Date and (k2) a certificate executed by the Company and containing the representation and warranty of the Company that the conditions set forth in Sections 6.17.1.2 , 6.2, 6.3, 6.4, 6.5, 6.8, 6.10 7.1.3 and 6.13 7.1.4 hereof have been duly satisfied (the "Company's Closing Certificate");
(l) a certificate of merger executed by the Company to be filed with the Secretary of State of the State of Delaware in accordance with Section 1.3;
(m) written resignations of all directors of the Company, effective as of the Closing Date; and
(n) the valid and effective termination as of the Effective Time of provisions in Contracts that provide any Person with rights of any nature with respect to the board of directors of the Company or the Subsidiary, except as provided generally by the Company's certificate of incorporation and bylaws or by applicable lawsatisfied.
Appears in 1 contract
Samples: Asset Purchase Agreement (Terayon Communication Systems)
