Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”). (b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect. (c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Performance Technologies Inc \De\), Merger Agreement (Sonus Networks Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Company Stockholder Agreement, the Merger or any other transactions contemplated by this Agreement or the Company Stockholder Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with subject to the requirements consents, approvals and authorizations specified in clauses (i) through (ivv) of Section 3.4(c) having been obtained prior to the Effective Time and all filings and notifications described in Section 3.4(c) having been made and the waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and any other applicable foreign antitrust or competition laws having terminated or expired prior to Effective Time, conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, rights of termination, Liens, penalties, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect. Section 3.4(b) of the Company Disclosure Schedule lists all consents, waivers and approvals under any of the Company’s or any of its Subsidiaries’ agreements, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including agency or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the HSR Act and any other applicable foreign antitrust or competition laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by and the rules and regulations of The the Nasdaq Stock Market Market, and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 2 contracts
Samples: Merger Agreement (Perkinelmer Inc), Merger Agreement (Caliper Life Sciences Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption approval of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL MBCA (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and adopted this Agreement and declared their its advisability in accordance with the provisions of the DGCLMBCA, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved voted to recommend that the stockholders of the Company vote in favor of the adoption approval of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a vote having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution execution, delivery and delivery performance of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in in, any violation or breach of, any provision of the Certificate Articles of Incorporation Organization or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or monetary encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the premerger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and other applicable competition, merger control, antitrust, foreign investment or other similar laws, (ii) the filing of the Certificate Articles of Merger with the Delaware Massachusetts Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws or foreign laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, be reasonably be expected likely to result in have a Company Material Adverse EffectEffect or prevent or materially delay the consummation of the Merger.
(d) The only vote of holders of any class or series of capital stock of the Company that may be required to approve this Agreement and to consummate the transactions contemplated by this Agreement is the affirmative vote for adoption approval of the Company Voting Proposal by (i) the holders of at least a majority two-thirds of the outstanding shares of Company Class A Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal and (ii) the holders of at least two-thirds of the outstanding shares of Class A Common and Class B Common on the record date for the Company Meeting, voting together as a single class (items (i) and (ii), the “Required Company Stockholder Vote”) is the only vote ). There are no bonds, debentures, notes or other indebtedness of the holders of Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any class or series matters on which stockholders of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreementmay vote.
Appears in 2 contracts
Samples: Merger Agreement (Stride Rite Corp), Merger Agreement (Saucony Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) subject to the execution and delivery of the 1989 Supplemental Indenture and the furnishing of the 1989 Indenture Notices pursuant to Section 6.15(a) and the execution and delivery of the 2007 Supplemental Indenture and the furnishing of the 2007 Indenture Notices pursuant to Section 6.15(b), conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Network Equipment Technologies Inc), Merger Agreement (Sonus Networks Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to assuming that the adoption Merger is consummated in accordance with Section 251(h) of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”)DGCL, consummate the Merger and the other transactions contemplated by this AgreementMerger. Without limiting the generality of the foregoing, the board of directors of the Company (the “The Company Board”), at a meeting duly called and held, by the unanimous vote of all directors directors, duly adopted resolutions (i) determined approving and declaring the advisability of this Agreement, the Merger, the Offer and the other transactions contemplated by this Agreement, (ii) declaring that the Merger and this Agreement are fair to and it is in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption that the Company enter into this Agreement and approval consummate the Merger and resolved to recommend that the stockholders of the Company vote accept the Offer and tender their shares of Company Common Stock pursuant to the Offer, in favor each case on the terms and subject to the conditions set forth herein, (iii) declaring that the terms of the adoption of this Agreement Offer and the approval of Merger are fair to the Merger, Company and the Company’s stockholders and (iv) recommending that the stockholders of the Company accept the Offer and tender their shares of Company Common Stock pursuant to the extent necessary, adopted resolutions having Offer. Assuming the effect accuracy of causing the Company not to be subject to any state takeover law or similar law representations and warranties of the Parent and the Purchaser in Section 4.6 and that might otherwise apply to this Agreementthe Merger is consummated in accordance with Section 251(h) of the DGCL, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and (assuming that the Merger is consummated in accordance with Section 251(h) of the DGCL) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws bylaws of the Company or of the charter, by-laws, bylaws or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Liens on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the HSR Act, and any other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement Offer Documents and the Schedule 14D-9 with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq the New York Stock Market Exchange, and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, are not reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption Assuming the accuracy of the Company Voting Proposal by Parent’s and the holders of at least a majority Purchaser’s representation and warranty set forth in Section 4.6 and that the Merger is consummated in accordance with Section 251(h) of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only DGCL, no vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, is necessary for the adoption of this Agreement and or for the consummation by the Company of the Merger Merger. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
(e) The Compensation Committee of the Company Board, or a committee of the Company Board consisting solely of independent directors (as defined in the New York Stock Exchange Rules), has taken, at a duly convened meeting thereof, all such actions as may be required to cause to be exempted under Rule 14d-10(d)(2) under the Exchange Act, any and all employment compensation, severance and employee benefit agreements and arrangements that have been entered into or granted by the other transactions contemplated by this AgreementCompany or any of its Subsidiaries with or to directors, officers, or employees of the Company or any of its Subsidiaries, to cause such agreements and arrangements to satisfy the non-exclusive safe harbor provisions of Rule 14d-10(d)(2) under the Exchange Act.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Salesforce Com Inc), Merger Agreement (Demandware Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Required Company Stockholder Approval”Vote (as defined below), to perform its obligations hereunder and consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of with all directors present and voting in favor, (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend recommend, subject to the provisions of Section 6.1 of this Agreement, that the stockholders of the Company vote in favor of the adoption approval of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Required Company Stockholder ApprovalVote. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)principles.
(b) The execution execution, delivery and delivery performance of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter Documents or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyCharter Documents, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation cancellation, modification or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty or increased fees under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s Subsidiaries’ assets underpursuant to, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract contract, subcontract, indenture, note, option or other agreement, instrument or obligation obligation, written or oral, to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundbound (each, a “Contract”), or (iii) subject to obtaining the Required Company Stockholder Approval Vote and compliance with the requirements specified in clauses (i) through (ivvi) of Section 3.4(c3.3(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, writ, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except except, in the case of clauses (ii) and (iii) of this Section 3.4(b) 3.3(b), for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations modifications, accelerations, losses, penalties, increased fees or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, have a Company Material Adverse Effect.
(c) No consent, approval, action, license, permit, order order, certification, concession, franchise or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county local or localforeign court, arbitrational tribunal, administrative agency or any supranational commission or non-U.S., government, political subdivision, governmental, legislative, other governmental or regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) or any other Person is required to be obtained or made, as the case may be, by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the Certificate of Merger with the Delaware Secretary of State “HSR Act”) and appropriate corresponding documents with the appropriate authorities of other states applicable foreign Antitrust Laws (as defined in which the Company is qualified as a foreign corporation to transact businessSection 6.5(b)), (ii) the filing of the certificate of merger with the Secretary of State of the State of Delaware, (iii) the filing of the Proxy Statement (as defined in Section 3.4(b)) with the Securities and Exchange Commission (the “SEC”) in accordance with under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing and effectiveness of the Registration Statement with the SEC in accordance with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), (v) the filing of such reports, schedules or materials under Section 13 of of, or Rule 14a-12 under under, the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivvi) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws or the rules and regulations of The Nasdaq Stock Market Nasdaq, and (vivii) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for approval and adoption of the Company Voting Proposal by the holders of at least a majority in voting power of the outstanding shares of Company Common Stock and Company Preferred Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Company Stockholders Meeting”), voting together as a single class (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the approval and adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Trimble Navigation LTD /Ca/), Merger Agreement (@Road, Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company Seller has all requisite corporate power and authority to enter into this AgreementAgreement and each of the Ancillary Agreements to which it is a party and to consummate the Contemplated Transactions. The execution, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) delivery and performance by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption Seller of this Agreement and the approval each of the Merger, and (iv) Ancillary Agreements to the extent necessary, adopted resolutions having the effect of causing the Company not to which it will be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement a party and the consummation by the Seller of the Merger and the other transactions contemplated by this Agreement by the Company Contemplated Transactions have been duly authorized by all necessary corporate or similar action on the part of the Company, subject only to the required receipt of the Company Stockholder ApprovalSeller. This Agreement and each such Ancillary Agreement has been duly executed and delivered by the Company Seller and constitutes this Agreement and each such Ancillary Agreement is the legal, valid and binding obligation of the Company, Seller enforceable against the Seller in accordance with its terms, subject to the effects of except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and or other similar laws Laws relating to or affecting creditors’ the rights of creditors generally and general by equitable principles principles, including those limiting the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution execution, delivery and delivery performance by the Seller of this Agreement by and each of the Company do notAncillary Agreements to which it is a party, and the consummation by the Company Seller of the Merger Contemplated Transactions, do not and the other transactions contemplated by this Agreement shall not, will not (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws Bylaws or similar organizational documents of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanySeller, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgageLiens, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“other than Permitted Liens”), on the Company’s or any of its Subsidiary’s assets under, with respect to any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundTransferred Assets, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c2.2(c), conflict with or violate any permitPermit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule license or regulation Law applicable to the Company Seller or any of its Subsidiaries or any of its or their properties or assets, except with only such exceptions, in the case of each of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts), violations, breaches, defaults, terminations, cancellations, accelerations or losses thatas would not reasonably be expected to have, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Seller Material Adverse Effect.
(c) No consent, approval, license, permitPermit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company or any of its Subsidiaries Seller in connection with the execution execution, delivery and delivery performance by the Seller of this Agreement by and each of the Company Ancillary Agreements to which it is a party or the consummation by the Company of the Merger and the other transactions contemplated by this AgreementContemplated Transactions, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation would not reasonably be expected to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would nothave, individually or in the aggregate, reasonably be expected to result in a Company Seller Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Elevation Oncology, Inc.), Asset Purchase Agreement (Merrimack Pharmaceuticals Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement Agreement, approval of the Merger and the other transactions set forth herein (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), by resolution at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved this Agreement, the Merger and the other transactions contemplated hereby and declared the advisability of this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement Agreement, the Merger and the Merger other transactions contemplated hereby be submitted to the stockholders of the Company Company, according to the terms of this Agreement, for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Mergerall other such matters, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law or similar law law, regulation or other legal requirement that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after . None of the date hereof to the extent expressly permitted by Section 6.1(b), foregoing resolutions have not been rescinded, modified or withdrawn in any waymanner except as may be permitted by the terms of this Agreement. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and, when executed by the Buyer and the Transitory Subsidiary, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of applicable bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition imposition, in each of the foregoing instances in any material respect, of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, permit, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate violate, in any material respect, any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) of the proxy statement to be sent to the stockholders of the Company relating to the adoption of this Agreement by the stockholders of the Company (as amended or supplemented from time to time, the “Proxy Statement”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) filings required under, and compliance with the requirements of, the Securities Act and the Exchange Act, (v) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings whichnecessary, if not obtained or madein all material respects, would notin connection with the transactions contemplated by this Agreement (each of such items from this clause (vi), individually or in together with each of the aggregateconsents, reasonably be expected to result in a approvals and other authorizations under any of the Company Material Adverse EffectContracts necessary in connection with the transactions contemplated by this Agreement, and such other consents, approvals and authorizations as are otherwise material to the transactions contemplated by this Agreement, collectively, the “Required Consents”). Section 3.4 of the Company Disclosure Schedules sets forth each of the Required Consents.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Capital Stock voting together as a single class (with holders of shares of Company Series A Preferred Stock voting on an “as converted” basis and not as a separate class) on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 2 contracts
Samples: Merger Agreement (Biosphere Medical Inc), Merger Agreement (Merit Medical Systems Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “"Company Board”"), at a meeting duly called and held, by the unanimous vote of all directors present at the meeting (i) determined that the Merger and authorized this Agreement are fair to and in the best interests of the Company and its stockholdersAgreement, (ii) approved the Merger Offer and this Agreement recommended that the holders of Company Securities tender their Company Securities to the Buyer pursuant to the Offer, and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement the stockholder proposal set forth on Schedule C-1 (the "Company Voting Proposal") and the Merger stockholder proposals set forth on Schedule C-2 (the "Additional Voting Proposals") be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement the Company Voting Proposal and the approval of Additional Voting Proposals (the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the "Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(bStockholder Approval"), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger Offer and the other transactions contemplated by this Agreement by the Company have has been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt approval of the Company Voting Proposal by the Required Company Stockholder ApprovalVote. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”").
(b) The execution and delivery of this Agreement by the Company do does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent consent, notice, report or waiver any other filing under, constitute a change in control under, require or necessitate the payment of a penalty under fee, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the imposition creation of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s assets under, any of the termsProperties or result in the Company or its Subsidiaries not being permitted or entitled to continue to use all of the Properties currently employed by it in the conduct of its business as currently conducted pursuant to, conditions or provisions of any note, bond, mortgagemortgage or indenture, indentureCompany Material Contract, lease, sublease, license, contract permit, franchise or other agreement, instrument or obligation arrangement to which the Company or any of its Subsidiaries is a party or by which any of them such Properties is bound or any of their properties or assets may be boundaffected, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivvi) of Section 3.4(c2.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation Law applicable to the Company or any of its Subsidiaries or any of its or their properties or assetsrespective Properties, except in the case of clauses (ii) and (iii) of this Section 3.4(b2.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would not be reasonably be expected to result inin any material liability to the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole.
(c) No consent, approval, license, permit, order Order or authorization of, or registration, declaration, notice notice, report or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock or Company ADSs are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business"HSR Act"), (ii) the filing of administrative report under the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Korean Foreign Investment Promotion Act”), (iii) the business combination report under the Korean Monopoly Regulation and Fair Trade Act, (iv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by (i) the holders of at least a majority of Company Common Stock present and represented at a duly constituted company stockholders meeting (the "Company Meeting") and (ii) at least one-third of all outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “"Required Company Stockholder Vote”") is the only vote of the holders of any class or series of the Company’s 's capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company Voting Proposal. There are no bonds, debentures, notes or other indebtedness of the Merger and Company having the other transactions contemplated by this Agreementright to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 2 contracts
Samples: Combination Agreement (WiderThan Co., Ltd.), Combination Agreement (Realnetworks Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, to perform its obligations hereunder and, subject only to the adoption approval of this Agreement and the Merger by the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock (with the Class A Common Stock and Class B Common Stock voting together as a single class for such purposes) (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Shareholder Approval”), to consummate the Merger and the other transactions contemplated by this AgreementMerger. Without limiting the generality of the foregoing, the board of directors of the Company (the “The Company Board”), at a meeting duly called and held, by the unanimous vote of all directors has unanimously (i) determined that this Agreement and the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, Company; (ii) adopted this Agreement; (iii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, Merger; (iiiiv) directed that this Agreement and the Merger be submitted to the stockholders of the Company Company’s shareholders for their adoption approval; and approval and (v) resolved to recommend that the stockholders of the Company vote in favor of the adoption approval of this Agreement and the approval of Merger by the Merger, and Company’s shareholders (iv) to the extent necessary, adopted resolutions having the effect of causing the “Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(bBoard Recommendation”), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Parent and Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and (subject to receipt of the Company Shareholder Approval) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate articles of Incorporation incorporation, bylaws or By-laws similar governing documents of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (a default with or without notice or the lapse of time, or both) a default both (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result (or, with or without notice or lapse of time, or both, would result) in the creation or imposition of any mortgageLien on any asset, security interest, pledge, lien, charge property or encumbrance right of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s Company or any of its Subsidiary’s assets Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation Contract to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties properties, rights or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c2.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, lawLaw, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties respective properties, rights or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b2.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, had and would not reasonably be expected to result in, have a Company Material Adverse EffectEffect and would not reasonably be expected to prevent, or materially impair or delay, the ability of the Company to consummate the Merger.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which a premerger notification report by the Company is qualified as a foreign corporation to transact businessunder the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”), and the expiration or termination of any applicable waiting period with respect thereto; (ii) the filing of the Proxy Statement Articles of Merger with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act Secretary of 1934, as amended (the “Exchange Act”), State; (iii) the filing with the SEC of (A) a proxy statement in preliminary and definitive form (each as amended or supplemented from time to time, the “Proxy Statement”) with respect to the Company Meeting, and (B) such reports, schedules or materials reports under Section 13 13(a) of or Rule 14a-12 under the Exchange Act, and such other compliance with the Exchange Act and the rules and regulations thereunder, as may be required in connection with this Agreement and the transactions contemplated hereby, Transactions; (iv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by or “blue sky” Laws or the rules and regulations of The Nasdaq Stock Market NASDAQ; and (viv) any such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, would not reasonably be expected to result in have a Company Material Adverse EffectEffect and would not reasonably be expected to prevent, or materially impair or delay, the ability of the Company to consummate the Merger.
(d) The affirmative vote for adoption Assuming the accuracy of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the CompanyParent’s stockholders (the “Company Meeting”) to consider and Merger Sub’s representation and warranty set forth in Section 3.4(d), the Company Voting Proposal (the “Required Company Stockholder Vote”) Shareholder Approval is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, Company Common Stock necessary for the adoption approval of this Agreement and the Merger or for the consummation by the Company of the Merger and the other transactions contemplated by this AgreementMerger.
Appears in 2 contracts
Samples: Merger Agreement (Kimball International Inc), Merger Agreement (Kimball International Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption approval of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL MBCA (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and adopted this Agreement and declared their advisability in accordance with the provisions of the DGCLMBCA, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved voted to recommend that the stockholders of the Company vote in favor of the adoption approval of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a vote having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation Organization or By-laws of the Company or of the charter, by-laws, or other similar organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundbound (a “Contract”), or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate Articles of Merger with the Delaware Secretary of State of the Commonwealth of Massachusetts and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement (as defined below) with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 165 and Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, and (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings whichthat, if not obtained or made, would not, individually or in the aggregate, would not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption approval of the Company Voting Proposal by the holders of at least a majority two-thirds of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption approval of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 2 contracts
Samples: Merger Agreement (Brooktrout Inc), Merger Agreement (Brooktrout Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into execute and deliver this AgreementAgreement and, subject to the approval of this Agreement by the Company’s shareholders under the NJBCA (the “Company Shareholder Approval”), to perform its obligations hereunder and, subject only and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors unanimously, (i) determined that the Merger and adopted this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCLNJBCA, and (iiiii) directed that this Agreement and the Merger be submitted to the stockholders shareholders of the Company for their adoption and approval and resolved to recommend that the stockholders shareholders of the Company vote in favor of the adoption approval of this Agreement and (the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the “Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(bBoard Recommendation”), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement and the Shareholder Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by each of the Buyer and the Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement and compliance by the Company with the terms and provisions hereof shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter Documents or By-laws any of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyDocuments, (ii) conflict with, or result in any material violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefitbenefit or forfeiture of any rights) under, require a consent consent, filing or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s respective properties, Intellectual Property or other assets under, any of the terms, conditions or provisions of any loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, lease, license, contract or other agreement, instrument or obligation obligation, written or oral, to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundbound (each, a “Contract”), or any Company Permit, or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, writ, order, decree, statute, lawLaw, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except except, in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflictsconflict, violationsviolation, breachesbreach, defaultsdefault, terminationsloss, cancellationsright, accelerations requirement, Lien or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on other occurrence which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
Effect and other than as may arise in connection with facts and circumstances particular to the Buyer, the Merger Sub and their Affiliates. As used in this Agreement, the term “Lien” shall mean any mortgage, security interest, pledge, lien, charge or encumbrance other than (dA) The affirmative vote for adoption statutory liens securing payments not due and payable as of the Company Voting Proposal by Closing Date, (B) such imperfections or irregularities of title, claims, liens, charges, security interests, easements, covenants and other restrictions or encumbrances, as do not materially affect the holders of at least a majority use of the outstanding shares properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties and (C) mortgages, or deeds of Company Common Stock trust, security interests or other encumbrances on title related to indebtedness reflected on the record date for the meeting consolidated financial statements of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Vital Signs Inc), Merger Agreement (General Electric Co)
Authority; No Conflict; Required Filings and Consents. (a) The Company Each of the Buyer and the Transitory Subsidiary has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company Buyer and the Transitory Subsidiary have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt each of the Company Stockholder ApprovalBuyer and the Transitory Subsidiary (including the approval of the Merger by the Buyer in its capacity as the sole stockholder of the Transitory Subsidiary). This Agreement has been duly executed and delivered by each of the Company Buyer and the Transitory Subsidiary and, assuming the due authorization, execution and delivery by the Company, constitutes the valid and binding obligation of each of the CompanyBuyer and the Transitory Subsidiary, enforceable in accordance with its terms, subject to the effects of except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and or other similar laws relating to or affecting the enforcement of creditors’ ' rights generally and by general equitable principles (whether such enforceability is considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”law).
(b) The execution and delivery of this Agreement by each of the Company Buyer and the Transitory Subsidiary do not, and the consummation by the Company Buyer and the Transitory Subsidiary of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or Byby-laws of the Company Buyer or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyTransitory Subsidiary, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s Buyer's or any of its the Transitory Subsidiary’s 's assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company Buyer or any of its Subsidiaries the Transitory Subsidiary is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses clause (i), (ii), (iii) through and (iv) of Section 3.4(c4.2(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company Buyer or any of its Subsidiaries the Transitory Subsidiary or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b4.2(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Buyer Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company Buyer or any of its Subsidiaries the Transitory Subsidiary in connection with the execution and delivery of this Agreement by the Company Buyer or the Transitory Subsidiary or the consummation by the Company Buyer or the Transitory Subsidiary of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities Secretaries of State of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing filings of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iviii) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market laws and (viiv) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would notnot be reasonably likely, individually or in the aggregate, reasonably be expected to result in have a Company Buyer Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to the adoption of this Agreement and the approval of the Merger (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to the extent required by applicable law, to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger Merger, the Offer and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger Merger, the Offer and this Agreement and declared their the advisability in accordance with the provisions of the DGCLthis Agreement, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated required by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayapplicable law. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder ApprovalApproval to the extent required by applicable law. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law nature (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval (to the extent required by applicable law) and compliance with subject to the requirements consents, approvals and authorizations specified in clauses (i) through (ivv) of Section 3.4(c)4.4(c) having been obtained prior to the Effective Time and all filings and notifications described in Section 4.4(c) having been made and the waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Act having terminated or expired prior to Effective Time, conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b4.4(b) for any such conflicts, violations, breaches, rights of termination, Liens, penalties, defaults, terminations, cancellations, accelerations or losses thatthat have not had, individually and would not reasonably be expected to result in, a Company Material Adverse Effect. Section 4.4(b) of the Company Disclosure Schedule lists all consents, waivers and approvals under any of the Company’s or any of its Subsidiaries’ agreements, licenses or leases required to be obtained in connection with the aggregateconsummation of the transactions contemplated hereby, have the absence of which has not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States foreign or foreign federaldomestic court, statearbitrational tribunal, county administrative agency or local, commission or any supranational or non-U.S., government, political subdivision, other governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including commission or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with Schedule TO, Offer Documents, Schedule 14D-9 and (if required by applicable law) the Securities and Exchange Commission proxy or information statement (the “SECProxy Statement”) with respect to the Company Stockholders Meeting (as defined below) with the SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 165 and Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The the Nasdaq Stock Market and the U.S. Federal Food, Drug, and Cosmetic Act, as amended, and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, have not had, and would not, individually or in the aggregate, not reasonably be expected to result in in, a Company Material Adverse Effect.
(d) The To the extent stockholder approval is required by applicable law, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Perkinelmer Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only in the case of the consummation of the Merger to the adoption approval of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL MBCA (the “Company Stockholder Approval”), to perform its obligations under and to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (together with any duly constituted committee thereof, the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger Company Stockholder Agreement and adopted this Agreement and declared their its advisability in accordance with the provisions of the DGCLMBCA, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption approval of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a vote having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreementexecution, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution delivery and delivery performance of this Agreement and the Company Stockholder Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement not to be subject to any state takeover Law or similar Law that might otherwise apply to such execution, delivery, performance or consummation. Assuming the accuracy of the representations and warranties of Buyer and Merger Sub in Section 4.5, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject in the case of the consummation of the Merger only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company, the performance by the Company do not, of its obligations hereunder and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement and the execution, delivery and performance by the stockholder parties thereto of the Company Stockholder Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation Organization or By-laws Laws of the Company or of the charter, by-lawsbylaws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, including the Company’s 2% Convertible Debentures issued pursuant to an Indenture dated June 18, 2003 (other than pursuant to Section 3.5 thereof) or (iii) subject in the case of the consummation of the Merger to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, lawLaw, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, had and would are not reasonably be expected to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign foreign, federal, statestate or local government or subdivision thereof, county court, arbitrational tribunal, administrative agency or local, commission or any supranational other governmental or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including agency or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this AgreementAgreement and the execution, delivery and performance of the Company Stockholder Agreement by the stockholders, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable Antitrust Laws, (ii) the filing of the Certificate Articles of Merger with the Delaware Massachusetts Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) and the rules and regulations promulgated thereunder, (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities lawsLaws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would notnot be reasonably expected, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The Assuming the accuracy of the representations and warranties of Buyer and Merger Sub in Section 4.6, the affirmative vote for adoption approval of the Company Voting Proposal by the holders of at least a majority two-thirds of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Keane, Inc.)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Agreement of Merger be submitted and to consummate the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayhereby and thereby. The execution and delivery of this Agreement and the Agreement of Merger and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company, subject only to to, in the required receipt case of the Merger, the approval and adoption of this Agreement and the Merger Agreement by the requisite vote of the Company Stockholder ApprovalShareholders as contemplated by Section 5.05 hereof. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to the effects of except as such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyancereorganization, moratorium or other similar laws affecting or relating to creditors rights generally, and (ii) the availability of injunctive relief and other equitable remedies. The Agreement of Merger, when executed and delivered as contemplated herein, will be duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of Parent and Sub, will constitute the valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium and or other similar laws affecting or relating to or affecting creditors’ creditors rights generally generally, and general (ii) the availability of injunctive relief and other equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)remedies.
(b) The Neither the execution and delivery of this Agreement or the Agreement of Merger, nor the consummation of the transactions contemplated herein or therein, by the Company do not(in each case, and with or without the consummation by passage of time or the Company giving of the Merger and the other transactions contemplated by this Agreement shall not, notice) will (i) violate or conflict with, or result in with any violation or breach of, any provision of the Certificate provisions of any of the Articles of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary Bylaws of the Company, (ii) conflict with, or result in any violation or breach of, violate or constitute (with a default, an event of default or without notice or lapse an event creating rights of timeacceleration, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation other additional rights, or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets rights under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation Material Contract (as defined in Section 3.15) to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company it or any of its Subsidiaries assets or any of its or their properties or assetsproperty are bound, except in the case of clauses (ii) and (iii) violate any statute, rule, regulation, injunction, decree, order, judgment or ruling of this Section 3.4(b) for any such conflictsforeign, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county local or local, other governmental authority or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “"Governmental Entity”") is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businesssubject, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or result in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption creation of any Liens upon any of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting assets or property of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders . The term "Liens" means liens, claims, charges, security interests, mortgages, pledges, easements, conditional sale or other title retention agreements, defects in title, covenants or other restrictions of any class or series of kind, including, any restrictions on the Company’s capital stock use, voting, transfer or other securities, whether debt securities or equity securities, necessary for the adoption attributes of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreementownership.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fore Systems Inc /De/)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger is advisable and this Agreement are fair to to, and in the best interests of of, the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor adopt this Agreement. Assuming the accuracy of the adoption of this Agreement Buyer’s and the approval of the Merger, Merger Subsidiary’s representations and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreementwarranties set forth in Section 4.15, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement by the Company and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, Table of Contents enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity ExceptionExceptions”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent consent, notice or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s assets under, under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, Material Contract or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements exceptions specified in clauses (i) through (ivvi) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, sublicense, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses thatLiens, and for any consents, notices or waivers not obtained or delivered (as applicable), individually or in the aggregate, that have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) and any other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State of the State of Delaware and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Joint Proxy Statement Statement/Prospectus with the U.S. Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act or the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations of The Nasdaq NASDAQ Stock Market LLC, (vi) such consents, approvals, orders, authorizations, registrations, declarations, notices and filings as may be required under applicable environmental, health or safety laws, rules and regulations, including those of the U.S. Food and Drug Administration or any successor entity thereto, and (vivii) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect.
(d) The Assuming the accuracy of the Buyer’s and the Merger Subsidiary’s representations and warranties set forth in Section 4.15, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock outstanding on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder VoteMeeting”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote. Table of Contents
Appears in 1 contract
Samples: Merger Agreement (Palomar Medical Technologies Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has had, as of the date of the Original Merger Agreement, all requisite corporate power and authority to enter into the Original Merger Agreement and, subject to the adoption of the Original Merger Agreement by the Company’s stockholders under the DGCL, to consummate the transactions contemplated by the Original Merger Agreement. The Company has, as of the date of this Agreement and as of the Closing Date, all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger is advisable and this Agreement are fair to to, and in the best interests of of, the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor adopt this Agreement. Assuming the accuracy of the adoption of this Agreement Buyer’s and the approval of the Merger, Merger Subsidiary’s representations and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreementwarranties set forth in Section 4.15, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement by the Company and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity ExceptionExceptions”).
(b) The execution and delivery of the Original Merger Agreement, as of the date of the Original Merger Agreement, and the execution and delivery of this Agreement, as of the date of this Agreement and as of the Closing Date, by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent consent, notice or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s assets under, under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, Material Contract or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements exceptions specified in clauses (i) through (ivvi) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, sublicense, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses thatLiens, and for any consents, notices or waivers not obtained or delivered (as applicable), individually or in the aggregate, that have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) and any other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State of the State of Delaware and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Joint Proxy Statement Statement/Prospectus with the U.S. Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act or the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations of The Nasdaq NASDAQ Stock Market LLC, (vi) such consents, approvals, orders, authorizations, registrations, declarations, notices and filings as may be required under applicable environmental, health or safety laws, rules and regulations, including those of the U.S. Food and Drug Administration or any successor entity thereto, and (vivii) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect.
(d) The Assuming the accuracy of the Buyer’s and the Merger Subsidiary’s representations and warranties set forth in Section 4.15, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock outstanding on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder VoteMeeting”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Palomar Medical Technologies Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into execute and deliver this Agreement, to perform its obligations hereunder and, subject only and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayhereby. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approvalapproval specified in Section 3.2(b). This Agreement has been duly executed and delivered by the Company and constitutes the a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock is the only action by the holders of capital stock of the Company necessary to adopt this Agreement and approve the Merger (the "Merger Vote"). The Board of Directors of the Company (at a meeting duly called and held) has unanimously (i) approved this Agreement, the Merger and the transactions contemplated hereby (the "Merger Proposal"), (ii) determined that the Merger Proposal is fair to and in the best interests of the Stockholders and declared the advisability of this Agreement, (iii) recommended that the Stockholders vote in favor of the Merger Proposal and (iv) fixed the date of this Agreement as the record date for the determination of the Stockholders entitled to vote on the Merger Proposal.
(c) The execution and delivery of this Agreement by the Company do does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, of any provision of the Company Certificate of Incorporation or By-laws of the Company Bylaws or of the charter, by-laws, or other comparable organizational document documents of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundbound except for violations, breaches, defaults, terminations, cancellations, accelerations or losses which would not, in the aggregate, reasonably be expected to have a Material Adverse Effect or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(cd) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice declaration or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal administrative agency or judicial commission or arbitral body other governmental authority or instrumentality (each, a “"Governmental Entity”") or other person is required by to be obtained by, or given to or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreementhereby, except for (i) the Merger Vote, (ii) the filing of the pre- merger notification report under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and the expiration or early termination of the related waiting period, (iii) the filing of the Certificate of Merger with with, and the Delaware acceptance of such filing by, the Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities State of Delaware and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (vthe third party consents identified in Section 3.2(d) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders Disclosure Letter (the “consents identified in clause (iv) hereof being referred to collectively as the "Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this AgreementThird Party Consents").
Appears in 1 contract
Samples: Merger Agreement (New England Business Service Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (together with any duly constituted committee thereof, the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company execution, delivery or performance of this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement not to be subject to any state takeover law or similar law that might otherwise apply to this Agreementsuch execution, delivery, performance or consummation. None of such actions of the Merger Company Board has been amended, rescinded or any other transactions contemplated by this Agreementmodified; provided that such actions may be amended, in each case which resolutions, except rescinded or modified after the date hereof to of this Agreement in accordance with Section 6.1. Assuming the extent expressly permitted by accuracy of the representations and warranties of Buyer and Merger Sub in Section 6.1(b)4.6, have not been rescinded, modified or withdrawn in any way. The the execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws bylaws of the Company or of the charter, by-lawsbylaws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result inin any material liability of the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The Assuming the accuracy of the representations and warranties of Buyer and Merger Sub in Section 4.6, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Emc Corp)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) unanimously determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company execution, delivery or performance of this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement not to be subject to any state takeover law Law or similar law Law that might otherwise apply to this Agreementsuch execution, delivery, performance or consummation. Assuming the accuracy of the representations and warranties of Buyer and Acquisition Sub in Section 4.7, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws bylaws of the Company or of the charter, by-lawsbylaws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s Subsidiaries’ assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.the
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this AgreementAgreement and any Member Related Agreement to which it is a party, perform its obligations hereunder and, subject only to the adoption of under this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), and any Member Related Agreement to which it is a party and to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCLany Member Related Agreement to which it is a party.
(b) The execution, (iii) directed that this Agreement delivery and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption performance of this Agreement and the approval of the Merger, and (iv) any Member Related Agreement to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement it is a party and the consummation of the Merger and the other transactions contemplated by this Agreement and any Member Related Agreement to which it is a party by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to and, other than obtaining the required receipt Company Member Approval, no other corporate action or proceeding on the part of the Company Stockholder Approvalor its board of managers is necessary to authorize the execution, delivery or performance of this Agreement, any Member Related Agreement to which it is a party or the consummation of the transactions contemplated by this Agreement or any such Member Related Agreement. This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of except as such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and or other similar laws affecting or relating to or affecting creditors’ rights generally generally; and general (ii) the availability of injunctive relief and other equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)remedies.
(bc) The execution and Neither the execution, delivery of this Agreement by the Company do not, and the consummation or performance by the Company of this Agreement or any of the Merger and Member Related Agreements, nor the other consummation of the transactions contemplated by this Agreement shall notor any of the Member Related Agreements, will directly or indirectly (with or without notice or lapse of time, or both): (i) contravene, conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, Constituent Document; (ii) contravene, conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of modification, termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require notice to any Person or a consent or waiver under, constitute a change in control under, require the payment of a fee or penalty under or result in the creation or imposition of any mortgage, security interest, pledge, lien, charge Lien upon or encumbrance of with respect to any nature, whether arising asset owned or used by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets Company under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract Contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them it or any of their its properties or assets may be bound, or ; (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c)contravene, conflict with or violate violate, or give any permitPerson the right to challenge any of the transactions contemplated by this Agreement or any of the Member Related Agreements or to exercise any remedy or obtain any relief under, concessionany Law or any order, franchise, license, judgmentwrit, injunction, order, decree, statute, law, ordinance, rule judgment or regulation applicable decree to which the Company or any of its Subsidiaries assets is subject; or (iv) contravene, conflict with or result in a violation of any of its the terms or their properties requirements of, or assetsgive any Governmental Body the right to revoke, except in withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by the case Company or that otherwise relates to the business of clauses (ii) and (iii) the Company or to any of this Section 3.4(b) for any such conflictsthe assets owned, violations, breaches, defaults, terminations, cancellations, accelerations used or losses that, individually or in controlled by the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse EffectCompany.
(cd) No consent, approval, license, permit, order or authorization ofGovernmental Authorization, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Body is required by or with respect to the Company or any of its Subsidiaries Company: (i) in connection with the execution and delivery of this Agreement or any of the Member Related Agreements by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing Agreement or any of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, Member Related Agreements; or (ii) necessary for the filing Company to operate its business immediately after the Closing in the same manner as operated immediately prior to the Closing after giving effect to the consummation of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with transactions contemplated by this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse EffectMember Related Agreements.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Equity Purchase Agreement (Adial Pharmaceuticals, Inc.)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption approval of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders shareholders under the DGCL PBCL (the “Company Stockholder Shareholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholdersshareholders, (ii) approved the Merger and adopted this Agreement and declared their advisability in accordance with the provisions of the DGCLPBCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders shareholders of the Company for their adoption and approval and resolved voted to recommend that the stockholders shareholders of the Company vote in favor of the adoption approval of this Agreement Agreement. The Company has previously taken all necessary action to render inapplicable the provisions of the Pennsylvania anti-takeover statutes in Sections 2541 through 2576 inclusive of the PBCL (the “PA Anti-Takeover Statutes”), that may be applicable to the Merger and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to transactions contemplated hereby in this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, the execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation or By-laws of the Company or of the charter, by-laws, or other similar organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance encumbrance, lease, license, encroachment, conditional sale agreement or other title retention agreement, option, covenant, right of any nature, whether arising by contract way or by operation of law easement (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundbound (a “Contract”), or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate Articles of Merger with the Delaware Secretary Department of State of the Commonwealth of Pennsylvania and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement (as defined below) with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings the filing under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as may be required amended (the “HSR Act”) as contemplated by the rules and regulations of The Nasdaq Stock Market Section 6.5 below, and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings whichthat, if not obtained or made, would not, individually or in the aggregate, would not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption approval of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of votes cast by all Company Common Stock on the record date for shareholders entitled to vote thereon at the meeting of the Company’s stockholders shareholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Shareholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption approval of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this AgreementAgreement and, assuming the accuracy of the representations and warranties of the Parent and the Purchaser in Section 4.5 and that the Merger is consummated in accordance with Section 251(h) of the DGCL, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), and consummate the Merger and the other transactions contemplated by this AgreementMerger. Without limiting the generality of the foregoing, the board of directors of the Company (the “The Company Board”), at a meeting duly called and held, by the unanimous vote of all directors directors, duly and unanimously adopted resolutions (i) determined determining and declaring that the Merger and this Agreement are fair to and it is in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption that the Company enter into this Agreement and approval consummate the Merger and resolved to recommend that the stockholders of the Company vote in favor accept the Offer and tender their shares of the adoption of this Agreement and the approval of the Merger, and (iv) Company Common Stock pursuant to the extent necessaryOffer, adopted resolutions having in each case on the effect of causing the Company not to be terms and subject to any state takeover law or similar law that might otherwise apply to the conditions set forth herein, (ii) approving and declaring the advisability of this Agreement, the Offer, the Merger or any and the other transactions contemplated by this Agreement, in each case which resolutions, except after (iii) declaring that the date hereof terms of the Offer and the Merger are fair to the extent expressly permitted by Company and the Company’s stockholders and (iv) recommending that the Company’s stockholders accept the Offer and tender their shares of Company Common Stock pursuant to the Offer. Assuming the accuracy of the representations and warranties of the Parent and the Purchaser in Section 6.1(b)4.5 and that the Merger is consummated in accordance with Section 251(h) of the DGCL, have not been rescinded, modified or withdrawn in any way. The the execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Parent and the Purchaser and the accuracy of the representations and warranties of the Parent and the Purchaser in Section 4.5, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and (assuming the accuracy of the representations and warranties of the Parent and the Purchaser in Section 4.5 and that the Merger is consummated in accordance with Section 251(h) of the DGCL) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary bylaws of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, material contract or other agreement, instrument or obligation to which the Company or any Subsidiary of its Subsidiaries the Company is a party or by which any of them their respective assets or any of their properties or assets may be are bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement Offer Documents and the Schedule 14D-9 with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such other reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (viv) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, are not reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption Assuming the accuracy of the Company Voting Proposal by Parent’s and the holders of at least a majority Purchaser’s representations and warranties set forth in Section 4.5 and that the Merger is consummated in accordance with Section 251(h) of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only DGCL, no vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, is necessary for the adoption of this Agreement and or for the consummation by the Company of the Merger Merger. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
(e) The people, culture and compensation committee of the other transactions contemplated Company Board, or a committee of the Company Board consisting solely of directors that qualify as “independent directors” for purposes of the continued listing requirements of Nasdaq, has taken, at a duly convened meeting thereof, all such actions as may be required to cause to be exempted under Rule 14d-10(d)(2) under the Exchange Act, any and all employment compensation, severance and employee benefit agreements and arrangements that have been entered into or granted by this Agreementthe Company or any of its Subsidiaries with or to directors, officers, or employees of the Company or any of its Subsidiaries, to cause such agreements and arrangements to satisfy the non-exclusive safe harbor provisions of Rule 14d-10(d)(2) under the Exchange Act.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption approval of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders shareholders under the DGCL MBCA (the “Company Stockholder Shareholder Approval”), to perform its obligations under this Agreement and to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, held and by resolutions duly adopted by the unanimous requisite vote of all directors the Company Board, has (i) determined that the Merger and adopted this Agreement are fair to and in approved the best interests performance by the Company of its obligations hereunder and the consummation of the Company and its stockholderstransactions contemplated hereby, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders a vote of the Company Company’s shareholders for their adoption approval at a meeting of the shareholders, and approval and (iii) subject to the provisions set forth in this Agreement, resolved to recommend that the stockholders of the Company vote in favor of the adoption of Company’s shareholders approve this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayhereby. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. Such resolutions are in full force and effect and have not subsequently been rescinded or withdrawn in any way. Other than the Company Shareholder Approval, no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of, and performance by the Company under, this Agreement or the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and (subject to receipt of the Company Shareholder Approval) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation Organization or By-laws of the Company Company, as amended and as in effect on the date hereof, or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of notice, amendment, termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge charge, adverse claim or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s properties, assets or rights under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties properties, assets or assets rights may be bound, or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, notices, amendments, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained that, individually or in the aggregate, have not had, and would not reasonably be expected material to result inthe business of the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole.
(c) No consent, waiver, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign national, federal, state, county or local, domestic or any supranational or non-U.S.foreign court, governmentarbitrational tribunal, political subdivision, governmental, legislativejudiciary body, regulatory or administrative agency or commission or other governmental or regulatory authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign law, regulation or decree designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization or restraint of trade (collectively “Antitrust Laws”), (ii) the filing of the Certificate Articles of Merger with the Delaware Massachusetts Secretary of State the Commonwealth and appropriate corresponding documents with the appropriate authorities of other states in which the Buyer, the Company or any of its Subsidiaries is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such other reports, schedules or materials under Section 13 of or Rule 14a-12 the Exchange Act and under the Exchange Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market Global Select Market, and (vi) such other consents, waivers, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The Assuming the accuracy of the Buyer’s and the Transitory Subsidiary’s representations and warranties set forth in Section 4.6, the affirmative vote for adoption approval of the Company Voting Proposal by the holders of at least a majority two-thirds of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders shareholders (the “Company Meeting”) to consider ), or at any adjournment or postponement thereof, in each case at which a quorum is present in accordance with the By-laws of the Company Voting Proposal (the “Required Company Stockholder Shareholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (American Science & Engineering, Inc.)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and each of the agreements and documents contemplated hereby to the adoption of this Agreement which Company is a party (the “"Company Voting Proposal”Ancillary Agreements") by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), and to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayAncillary Agreements. The execution and delivery of this Agreement and the Company Ancillary Agreements and the consummation of the Merger and the other transactions contemplated by this Agreement and the Company Ancillary Agreements by the Company have been duly authorized by all necessary corporate action on the part of the CompanyCompany other than, subject only with respect to the required receipt Merger, the approval and adoption of this Agreement and the Merger by the affirmative vote of a majority of the voting power of the then outstanding shares of Company Stockholder ApprovalCommon Stock and Company Preferred Stock, and the filing of the Certificate of Merger with the Secretary of State of Delaware as required by the DGCL. This Agreement has been and each of the Company Ancillary Agreements has been or will be duly executed and delivered by Company and (assuming the due execution and delivery of such agreements by the other parties thereto) constitutes or, with respect to the Company and Ancillary Agreements, constitutes or will constitute the valid and binding obligation obligations of the Company, enforceable in accordance with its their terms, subject . The Board of Directors of Company has not taken any action to accelerate any Options granted under the effects Company Stock Plans (other than as provided in Options heretofore granted by Company) and has approved the treatment of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered the Options set forth in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)Section 1.6 of this Agreement.
(b) The execution and delivery of this Agreement by and each of the Company do Ancillary Agreements by Company does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall and the Company Ancillary Agreements will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws Bylaws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified except as provided in clauses (i), (ii), (iii) through and (iv) of Section 3.4(c)in paragraph (c) below, conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, cancellations or accelerations or losses thatwhich are not, individually or in the aggregate, reasonably likely to have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice declaration or filing with with, any United States domestic or foreign foreign, federal, state, county or localmunicipal government, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commissionbureau, self-regulatory organization commission or other similar type body obtaining authority therefrom, or created pursuant to any law, (including without limitation, Environmental Laws, as defined in Section 3.12) or any stock market court or stock exchange on which shares of Company Common Stock are listed for tradingarbitration body ("Governmental Entity"), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreementhereby and thereby, except for (i) the filing of the pre-merger notification report under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, ("HSR Act"), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”)State, (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable Federal or state securities laws, (v) such filings as may be required by laws and the rules and regulations laws of The Nasdaq Stock Market any foreign country and (viiv) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lernout & Hauspie Speech Products Nv)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, to perform its obligations hereunder and, subject only and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayhereby. The execution and delivery by the Company of this Agreement Agreement, the performance by the Company of its obligations hereunder and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company, subject subject, in the case of such consummation, only to the required receipt approvals and actions of the Company Stockholder ApprovalCompany's stockholders specified in Section 3.3(b). This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by the Buyer and Sub, constitutes the a valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other reorganization or similar laws now or hereafter in effect relating to or affecting creditors’ ' rights generally and or to general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)of equity.
(b) The execution and delivery affirmative vote or action by written consent of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Stock, voting together as a single class, and (ii) the holders of a majority of the outstanding shares of Preferred Stock, voting together as a single class (with each share of Preferred Stock having such number of votes equal to the whole number of shares of Common Stock on the record date for the meeting into which such share of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Preferred Stock is convertible), is the only vote of action by the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, Company Stock necessary for the adoption of to adopt this Agreement and for approve the consummation Merger (the "Merger Stockholder Approval Action"). The consent of the holders of 51% of the outstanding shares of each series of Preferred Stock, in each case consenting as a separate series (the "Preferred Stock Conversion Consent"), is the only action by the holders of any class or series of Company of the Merger Stock, and the other transactions contemplated by this Agreement.no other
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Required Company Stockholder Approval”)Vote, to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors present at the meeting (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their Table of Contents its advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company execution, delivery or performance of this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement not to be subject to any state takeover law Law or similar law Law that might otherwise apply to this Agreementsuch execution, delivery, performance or consummation. Assuming the accuracy of the representations and warranties of the Buyer and the Transitory Subsidiary in Section 4.6, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Required Company Stockholder ApprovalVote. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, or (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Required Company Stockholder Approval Vote and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, lawLaw, ordinance, rule or regulation regulation, in each case issued, granted or promulgated by any court, arbitrational tribunal, administrative agency or commission or other governmental or regulatory authority, agency or instrumentality (a “Governmental Entity”) and applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses clause (ii) and (iii) of this Section 3.4(b) ), for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations conflicts or losses that, individually or in the aggregate, have not had, and violations that would not reasonably be expected to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) or any other Antitrust Law, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement filings required under, and compliance with the requirements of, the Securities and Exchange Commission Act of 1933, as amended (the “SECSecurities Act”) in accordance with and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws or the rules and regulations of The Nasdaq the New York Stock Market Exchange, and (viv) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in not have a Company Material Adverse Effect.
(d) The Assuming the accuracy of the representations and warranties of the Buyer and the Transitory Subsidiary in Section 4.6, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for determination of the stockholders entitled to vote at the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Merger and the other transactions contemplated by this Agreement.Company may vote. Table of Contents
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority (corporate and other) to enter into execute and deliver this Agreement, Agreement and the other agreements contemplated hereby and to perform its their respective obligations hereunder and thereunder. The execution and delivery by the Company of this Agreement and the other agreements contemplated hereby and, subject to obtaining the Company Stockholder Approval, which is the only to approval required from the adoption Company Stockholders, the performance by the Company of this Agreement (and the “Company Voting Proposal”) consummation by the Company’s stockholders under Company of the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated hereby and thereby have been duly and validly authorized by this Agreementall necessary corporate and other action on the part of the Company. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this This Agreement and the consummation of the Merger and the all other transactions agreements contemplated by this Agreement by the Company hereby have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly and validly executed and delivered by the Company party thereto and constitutes the or will constitute a valid and binding obligation of the Company, enforceable against them in accordance with its terms, subject to the effects of except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyancemoratorium, reorganization, moratorium and other similar laws relating to or Laws affecting creditors’ rights generally and by general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)of equity.
(b) The Subject to the filing of the Certificate of Merger as required by the DGCL, neither the execution and delivery by the Company of this Agreement or any other agreement contemplated hereby, nor the performance by the Company do notof its obligations hereunder or thereunder, and nor the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall nothereby or thereby, will (i) conflict with, with or result in any violation or breach of, violate any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary Organizational Documents of the Company, each as amended or restated to date, or the Organizational Documents of any Subsidiary, each as amended or restated to date, (ii) require on the part of the Company, any Subsidiary or any Company Stockholder any notice to or filing with, or any permit, authorization, consent or approval of, any Governmental Entity, (iii) conflict with, or result in any violation or a breach of, or constitute (with or without due notice or lapse of time, time or both) a default (or give rise to a right of terminationunder, cancellation or result in the acceleration of any obligation or loss of any material benefit) obligations under, create in any party the right to accelerate, terminate, modify or cancel, or require a any notice, consent or waiver under, constitute any contract, lease, sublease, license, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, instrument of Indebtedness, Lien or other arrangement to which the Company or any Subsidiary is a change party or by which the Company or any Subsidiary is bound or to which any of the assets of the Company or any Subsidiary are subject, except as would not have, individually or in control underthe aggregate, require the payment of a penalty under or Company Material Adverse Effect, (iv) result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance Lien upon any assets of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, Subsidiary or (iiiv) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permitorder, concession, franchise, license, judgmentwrit, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company Company, any Subsidiary or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No material consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company or any of its Subsidiaries Subsidiary in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, to perform its obligations hereunder and, subject only and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayhereby. The execution and delivery by the Company of this Agreement Agreement, the performance by the Company of its obligations hereunder and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company, subject subject, in the case of such consummation, only to the required receipt approvals and actions of the Company Stockholder ApprovalCompany's stockholders specified in Section 3.3(b). This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by the Buyer and Sub, constitutes the a valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other reorganization or similar laws now or hereafter in effect relating to or affecting creditors’ ' rights generally or to general principles of equity.
(b) The affirmative vote or action by written consent of (i) the holders of a majority of the outstanding shares of Company Stock, voting together as a single class, and general equitable principles (whether considered ii) the holders of a majority of the outstanding shares of Preferred Stock, voting together as a single class (with each share of Preferred Stock having such number of votes equal to the whole number of shares of Common Stock into which such share of Preferred Stock is convertible), is the only action by the holders of any class or series of Company Stock necessary to adopt this Agreement and approve the Merger (the "Merger Stockholder Approval Action"). The consent of the holders of 51% of the outstanding shares of each series of Preferred Stock, in each case consenting as a proceeding separate series (the "Preferred Stock Conversion Consent"), is the only action by the holders of any class or series of Company Stock, and no other action by the Company or any other Person is, required to effect the Preferred Stock Conversion. The Board of Directors of the Company has unanimously (w) approved this Agreement and the Merger, (x) determined that this Agreement and the Merger fair to and in equity the best interests of the holders of Company Stock and declared the advisability of this Agreement, (y) determined to recommend that the Company's stockholders vote, or act by written consent, in favor of adoption of this Agreement, and (z) fixed the date of this Agreement as the record date for the determination of stockholders entitled to execute a written consent adopting this Agreement (the "Record Date"). The shares of Company Stock held by stockholders of the Company listed on the signature pages of the Voting Agreement represent, as of the Record Date, (i) a majority of the voting power represented by all outstanding shares of Company Stock, (ii) a majority of the outstanding shares of Preferred Stock, voting together as a single class and (iii) at law)(the “Bankruptcy and Equity Exception”least 51% of the voting power represented by all outstanding shares of each series of Preferred Stock (for purposes of this clause (ii), assuming each such series is consenting as a separate series).
(bc) The execution and delivery of this Agreement by the Company do does not, and the performance by the Company of its obligations hereunder and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall hereby will not, (i) conflict with, or result in any violation or breach of, of any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyBylaws, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a payment obligation, termination or right of termination, cancellation or right of cancellation, acceleration or right of acceleration, of any right or obligation or loss of any material benefit) ), or require the consent, approval or waiver of any third party in order to assign to the Buyer or for the Company to continue to enjoy the benefits of or exercise any right, under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them it or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except except, in the case of clauses (ii) and (iii) of this Section 3.4(b) ), for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses thatconflicts which would not, either individually or in the aggregate, have not had, and would not or be reasonably be expected likely to result in, have a Company Material Adverse Effect.
(cd) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice declaration or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal administrative agency or judicial commission or arbitral body other governmental authority or instrumentality (each, a “"Governmental Entity”") or other Person is required by to be obtained by, or given to or with respect to to, the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder or the consummation by the Company of the Merger and the other transactions contemplated by this Agreementhereby, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State State, and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of any such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such other consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and or filings which, if not obtained or made, would not, either individually or in the aggregate, have or be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Each Group Company has all requisite corporate power and authority (corporate and other) to enter into execute and deliver this Agreement, Agreement and the other agreements contemplated hereby to which such Group Company is or will be a party and to perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any waythereunder. The execution and delivery by each Group Company of this Agreement and each other Transaction Document to which such Group Company is or will be a party has been, and the performance by each Group Company of this Agreement and the consummation by each Group Company of the Merger and the other transactions contemplated by this Agreement by the Company hereby and thereby have been been, duly and validly authorized by all necessary corporate and other action on the part of the Company, subject only to Group Companies and the required receipt of the Company Stockholder ApprovalSellers. This Agreement has been, and each other Transaction Document to which such Group Company is a party has been or will be as of the Closing Date, duly and validly executed and delivered by the each Group Company and constitutes the or will constitute a valid and binding obligation of the each Group Company, enforceable against it in accordance with its termsterms except as may be limited by the following (collectively, subject to the effects of “Enforceability Exceptions”): (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, reorganization, moratorium and or other similar laws of general application relating to or affecting the enforcement of creditors’ rights generally and general generally, or (ii) Laws relating to the availability of specific performance, injunctive relief or other equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)remedies.
(b) The Subject to compliance with the HSR Act, neither the execution and delivery by any Group Company of this Agreement or any other Transaction Document to which it is a party, nor the performance by the any Group Company do notof its obligations hereunder or thereunder, and nor the consummation by the any Group Company of the Merger and the other transactions contemplated hereby or thereby, will (i) require on the part of any Group Company any notice to or filing with, or any Permit of, any Governmental Entity, except for any filings and notices required by this Agreement shall notapplicable securities Laws or any filing for which the Buyer is responsible; (ii) conflict with or violate any provision of the Organizational Documents of any Group Company, each as amended or restated to date, (iiii) conflict with, or result in any violation or a breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without due notice or lapse of time, time or both) a default (or give rise to a right of terminationunder, cancellation or result in the acceleration of any obligation or loss of any material benefit) obligations under, create in any party the right to accelerate, terminate, modify or cancel, or require a any notice, consent or waiver under, constitute any Material Contract, Permit or Lien to which any Group Company is a change in control underparty, require the payment of a penalty under or (iv) result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance Lien (other than a Permitted Lien) upon any assets of any nature, whether arising by contract Group Company or by operation of law (“Liens”), on the Company’s v) violate any Order or Law applicable to any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Group Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties Properties or assets, except in the case of foregoing clauses (iii), (iii) and (iii) of this Section 3.4(bvi) for any such conflicts, violations, breaches, defaults, accelerations, terminations, modifications, cancellations, accelerations requirements, Liens or losses violations that, individually or in the aggregate, have not had, resulted in and would not reasonably be expected to result inin the loss of any material rights or obligations, a Company Material Adverse Effector the creation of any material liability or obligation, on the part of any Group Company.
(c) No consentExcept as set forth in Section 3.4(c) of the Disclosure Schedule, approvaland subject to compliance with the HSR Act, license, permit, order no Permit or authorization Order of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the any Group Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the any Group Company or the consummation by the each Group Company of the Merger and the other transactions contemplated by this Agreement, except the Transaction Documents save for (i) the any filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in for which the Company Buyer is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effectresponsible.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Required Company Stockholder Approval”)Vote, to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, upon the recommendation of the Special Committee of the Company Board appointed to negotiate the terms and provisions of this Agreement (the “Special Committee”) and by the unanimous vote of all directors present at the meeting (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and declared their its advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreementexecution, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement not to be subject to any state takeover Law or similar Law that might otherwise apply to such execution, delivery, performance or consummation. Assuming the accuracy of the representations and warranties of the Buyer and the Transitory Subsidiary in Section 4.6, the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.Required
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Each of Company and Merger Sub has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the receipt of the approval by the Company Stockholders of the Company Stockholder Approvals and the adoption of this Agreement (by Company in its capacity as the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”)sole stockholder of Merger Sub, to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and heldmeeting at which all directors were present, by the unanimous vote of all directors vote, (i) determined that the Merger and this Agreement are is fair to to, and in the best interests of the Company and its stockholders, stockholders and (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger Company Stockholder Approvals be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayStockholder Approvals. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company and Merger Sub have been duly authorized by all necessary corporate action on the part of the Companyeach of Company and Merger Sub, subject only to the required receipt of the Required Company Stockholder ApprovalApproval and the adoption of this Agreement by Company in its capacity as the sole stockholder of Merger Sub. This Agreement has been duly executed and delivered by the each of Company and Merger Sub and, assuming the due execution and delivery of this Agreement by Target, constitutes the valid and binding obligation of the Companyeach of Company and Merger Sub, enforceable against Company and Merger Sub in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the each of Company and Merger Sub do not, and the consummation by the Company and Merger Sub of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate articles of Incorporation incorporation or By-laws bylaws of the Company or Merger Sub or of the charter, by-lawscertificate of incorporation or bylaws, or any other organizational document document, of any Subsidiary other subsidiary of the Company, (ii) conflict with, or result in any material violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s subsidiaries’ assets under, under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation Contract required to which be disclosed in Section 4.11(c) of the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundDisclosure Schedule, or (iii) subject to obtaining the Required Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivvii) of Section 3.4(c4.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, lawLaw, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts4.4(b), violations, breaches, defaults, terminations, cancellations, accelerations or losses thatas would not, individually or in the aggregate, have not had, and would not reasonably be expected to result in, in a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock Exchange Shares are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company or Merger Sub of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessState, (ii) the filing of the Proxy Registration Statement with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of the Proxy Statement/Prospectus with the SEC in accordance with the Exchange Act, (iv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 165 and Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated herebyhereby and thereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities lawsLaws and the Laws of any foreign country, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permitsauthorizations, orders, authorizationsfilings, registrationsapprovals and registrations that, declarations, notices and filings whichindividually or in the aggregate, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Business Combination (SPECTRAL CAPITAL Corp)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “"Company Voting Proposal”") by the Company’s 's stockholders under the DGCL (the “"Company Stockholder Approval”"), to perform its obligations and consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “"Company Board”"), at a meeting duly called and held, by the unanimous vote of with all directors present voting in favor, (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and adopted this Agreement and declared their its advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”").
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter Documents or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyCharter Documents, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation cancellation, modification or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty or increased fees under or result in the imposition of any mortgage, right of first refusal, claim, license, limitation in voting rights, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“"Liens”), ") on the Company’s 's or any of its Subsidiary’s Subsidiaries' assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract contract, subcontract, indenture, note, option or other agreement, instrument or obligation obligation, written or oral, to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundbound (each, a "Contract"), or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivvi) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, writ, decree, statute, law, ordinance, rule rule, or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations modifications, accelerations, losses, penalties, increased fees or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, in a Company Material Adverse Effect.
(c) No consent, approval, action, license, permit, order order, certification, concession, franchise or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county state or local, U.S. or any supranational foreign court, arbitrational tribunal, administrative agency or non-U.S., government, political subdivision, governmental, legislative, commission or other governmental or regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a "Governmental Entity") or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "XXX Xxx") xxx xxplicable foreign antitrust or merger control laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessbusiness in order to continue such qualification, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, and (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would notnot be, individually or in the aggregate, reasonably be expected likely to result in a Company Material Adverse Effect.
(d) The affirmative vote for approval and adoption of the Company Voting Proposal by the holders of at least a majority in voting power of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s 's stockholders (the “"Company Meeting”") to consider the Company Voting Proposal (the “"Required Company Stockholder Vote”") is the only vote of the holders of any class or series of the Company’s 's capital stock or other securities, whether debt securities or equity securities, necessary for the approval and adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, Contracts, debentures, warrants, options, series of capital stock, notes or other Indebtedness of the Company or its Subsidiaries having the right to vote (or, except for the Company's Zero Coupon Notes and the Company Warrants, convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or its Subsidiaries may vote.
Appears in 1 contract
Samples: Merger Agreement (Doubleclick Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Required Company Stockholder Approval”Vote (as defined below), to perform its obligations hereunder and consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend recommend, subject to the provisions of Section 6.1 of this Agreement, that the stockholders of the Company vote in favor of the adoption approval of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Required Company Stockholder ApprovalVote. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)principles.
(b) The execution execution, delivery and delivery performance of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter Documents or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyCharter Documents, (ii) conflict with, or result in any material violation or material breach of, or constitute (with or without notice or lapse of time, or both) a material default (or give rise to a right of termination, cancellation cancellation, modification or acceleration of any material obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a material penalty or material increased fees under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), material Lien on the Company’s or any of its Subsidiary’s Subsidiaries’ assets underpursuant to, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundMaterial Contract (as defined in Section 3.11 below), or (iii) subject to obtaining the Required Company Stockholder Approval Vote and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c3.3(c), conflict with or violate any material permit, concession, franchise, license, judgment, injunction, order, writ, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, action, license, permit, order order, certification, concession, franchise or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county local or localforeign court, arbitrational tribunal, administrative agency or any supranational commission or non-U.S., government, political subdivision, governmental, legislative, other governmental or regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) or any other Person is required to be obtained or made, as the case may be, by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate certificate of Merger merger with the Delaware Secretary of State and appropriate corresponding documents with of the appropriate authorities State of other states in which the Company is qualified as a foreign corporation to transact businessDelaware, (ii) the filing of the Proxy Statement (as defined in Section 3.4(b)) with the Securities and Exchange Commission (the “SEC”) in accordance with under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, and (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for approval and adoption of the Company Voting Proposal by the holders of at least (i) a majority in voting power of the outstanding shares of Company Common Stock and Company Preferred Stock (to the extent entitled to vote on the Company Voting Proposal) on the record date for the meeting of the Company’s stockholders to consider the Company Voting Proposal (the “Company Stockholders Meeting”), voting together as a single class, and (ii) a majority of the outstanding shares of Company Common each of the Series C Preferred Stock and the Series D-1 Preferred Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal Proposal, voting as separate classes (items (i) and (ii) being collectively referred to herein as the “Required Company Stockholder Vote”) is ), are the only vote votes of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the approval and adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Spacedev, Inc.)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to the adoption of execute and deliver this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), and to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at At a meeting duly called and held, the Company Board, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and adopted this Agreement and declared their advisability in accordance with the provisions of the DGCLDGCL and the Company's Restated Certificate of Incorporation, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, Merger and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law (including Section 203 of the DGCL) or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement or the Stockholders' Agreement. Concurrently with the execution of this Agreement, the Company Stockholder Approval has been obtained in each case which resolutionsaccordance with the provisions of the DGCL, except after the date hereof Company's Restated Certificate of Incorporation and the terms of the Company Stockholders Agreement (as defined below). No other corporate proceedings are necessary to authorize the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement by the Company and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approvalhereby. This Agreement has been duly executed and delivered by the Company and (assuming due authorization, execution and delivery of this Agreement by S Sub, the Parent, the Buyer and the Acquisition Subsidiary) constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ ' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”law).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Restated Certificate of Incorporation or Amended and Restated By-laws of the Company or of the charter, by-laws, or other organizational document of any Significant Subsidiary of the Company, (ii) conflict in any material respect with, or result in any material violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefitobligation) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s 's or any of its Subsidiary’s Subsidiaries' material assets under, any of the terms, conditions or provisions of any material note, bond, mortgage, indenture, lease, license, contract contract, agreement or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their material properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c3.3(c), conflict with or violate in any material respect any material permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their material properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal arbitration tribunal, administrative agency or judicial commission or arbitral body other governmental or regulatory authority, agency or instrumentality, foreign or domestic (each, a “"Governmental Entity”) "), is required by or with respect to the Company or any of ------------------- its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (ii) the applicable requirements of the Communications ------- Act of 1934, as amended, and the rules, regulations and policies of the Federal Communications Commission or any successor agency thereto (the "FCC") thereunder --- (collectively, the "Communications Act") (including requirements related to the ------------------ transfer of control of licenses in connection with the operation of the full-power and low-power television stations owned and operated by the Company (the "Stations")), (iii) the filing of the Certificate of Merger with the Delaware ------- Secretary of State of the State of Delaware and appropriate corresponding documents with the appropriate authorities Secretaries of State of other states in which the Company is qualified as a foreign corporation to transact business, (iiiv) the filing of the Proxy Statement such reports, schedules or materials with the Securities and Exchange Commission (the “"SEC”") in accordance with under the Securities Exchange Act of 1934, as amended (the “"Exchange --- -------- Act”"), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions --- contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under the Securities Act of 1933, as amended (the "Securities Act"), and applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market -------------- laws and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarationsapprovals and registrations as (A) may be required as a result of the Company's and its Subsidiaries' operations or assets located or conducted outside of the United States (provided that (x) the failure to file or obtain such consents, notices licenses, permits, orders, authorizations, filings, approvals, declarations or registrations or (y) the failure of such consents, licenses, permits, orders, authorizations, filings, approvals, declarations or registrations to occur, shall not materially and filings whichadversely affect, if impede or delay the Company's ability to consummate the Merger and the transactions contemplated hereby in accordance with the terms of this Agreement) or (B) are not obtained or made, would notmaterial, individually or in the aggregate, reasonably be expected to result in the business and operations of the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole.
(d) The affirmative vote (or written consent in lieu thereof) for adoption of the Company Voting Proposal this Agreement by (i) the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting and Company Preferred Stock, voting as one class, and (ii) each of the Company’s stockholders Primary Stockholders (as such term is defined in the Amended and Restated Stockholders' Agreement, dated as of May 31, 2001, by and among the Company and the other parties named therein (the “"Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Stockholders -------------------- Agreement")), is the only vote (which vote is satisfied by the Company --------- Stockholder Approval) of the holders of any class or series of the Company’s 's capital stock or other securities, whether debt securities or equity securities, of the Company necessary for the adoption of to adopt this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority (corporate and other) to enter into execute and deliver this Agreement, Agreement and the other agreements contemplated hereby and to perform its respective obligations hereunder and thereunder. The execution and delivery by the Company of this Agreement and the other agreements contemplated hereby and, subject to obtaining the Company Stockholder Approval, which is the only to approval required from the adoption Company Stockholders, the performance by the Company of this Agreement (and the “Company Voting Proposal”) consummation by the Company’s stockholders under Company of the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated hereby and thereby have been duly and validly authorized by this Agreementall necessary corporate and other action on the part of the Company. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this This Agreement and the consummation of the Merger and the all other transactions agreements contemplated by this Agreement by the Company hereby have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly and validly executed and delivered by the Company party thereto and constitutes the or will constitute a valid and binding obligation of the Company, enforceable against them in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The Subject to the filing of the Certificate of Merger as required by the DGCL, neither the execution and delivery by the Company of this Agreement or any other agreement contemplated hereby, nor the performance by the Company do notof its obligations hereunder or thereunder, and nor the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall nothereby or thereby, will (i) conflict with, with or result in any violation or breach of, violate any provision of the Certificate Organizational Documents of Incorporation the Company, each as amended or By-laws restated to date, (ii) require on the part of the Company or of the charter, by-lawsany Company Stockholder any notice to or filing with, or other organizational document of any Subsidiary of the Companypermit, authorization, consent or approval of, any Governmental Entity, (iiiii) conflict with, or result in any violation or a breach of, or constitute (with or without due notice or lapse of time, time or both) a default (or give rise to a right of terminationunder, cancellation or result in the acceleration of any obligation or loss of any material benefit) obligations under, create in any party the right to accelerate, terminate, modify or cancel, or require a any notice, consent or waiver under, constitute any contract, lease, sublease, license, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, instrument of Indebtedness, Lien or other arrangement to which the Company is a change party or by which the Company is bound or to which any of the assets of the Company are subject, except as would not have, individually or in control underthe aggregate, require the payment of a penalty under or Company Material Adverse Effect, (iv) result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance Lien upon any assets of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iiiv) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permitorder, concession, franchise, license, judgmentwrit, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Eliem Therapeutics, Inc.)
Authority; No Conflict; Required Filings and Consents. (a) Sellers have made available to Buyer an accurate and complete copy of the Governing Documents of the Company and each of its Subsidiaries, each as amended as of the date hereof and in full force and effect as of the date hereof. The Company has not violated its Governing Documents in any material respect. The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and each of the Ancillary Agreements to which it is a party and to consummate the adoption of this Agreement (the “Company Voting Proposal”) by the transactions contemplated hereby and thereby. The Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this each Ancillary Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in which it is a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, party and the consummation by the Company of the Merger transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company. This Agreement has been, and each Ancillary Agreement to which the Company is a party will be at or prior to Closing, duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes, and each such Ancillary Agreement, when so executed and delivered, will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject, as to enforcement, to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity.
(b) Except as set forth in Section 6.02(b) of the Company Disclosure Letter, the execution and delivery by the Company of this Agreement and each Ancillary Agreement to which it is a party, the consummation by the Company of the transactions contemplated hereby and thereby, and the other transactions contemplated by this Agreement shall compliance of the Company with any provisions hereof or thereof, does not and will not, (i) conflict with, with or result in any material violation of or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute material default under (with or without notice or lapse of time, or both) ), or require a default (consent or waiver under, or give rise to a right of termination, cancellation cancellation, 10 modification or acceleration of any material obligation or loss of any material benefit) benefit under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition or creation of any mortgage, security interest, pledge, lien, charge Lien (other than a Permitted Lien) upon the Membership Interests or encumbrance any Lien upon any of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s the Subsidiaries’ properties or assets (tangible or intangible) under, (A) any provision of the termsGoverning Documents of the Company, conditions or provisions of (B) any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation material Contract to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundparty, or (iiiii) subject to obtaining the Company Stockholder Approval governmental filings and compliance with the requirements specified other matters referred to in clauses clause (ic) through (iv) of Section 3.4(c)hereof, conflict with or materially violate any permitPermit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule Order or regulation Law applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse EffectCompany.
(c) No consent, approval, license, permit, order Permit or Order or authorization of, or registration, declaration, notice registration or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement or the Ancillary Agreements by the Company or the consummation by the Company of the Merger and the other transactions to which it is a party that are contemplated by this Agreementhereby, except for (i) such Permits, Orders, registrations or filings related to, or arising out of, compliance with statutes, rules or regulations regulating the filing consumption, sale or serving of the Certificate of Merger with the Delaware Secretary of State alcoholic beverages or tobacco, and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing any Permits, Orders, registrations or filings required by Buyer or any of the Proxy Statement with the Securities and Exchange Commission its Subsidiaries, Affiliates or key employees (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 including under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse EffectGaming Laws).
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company Seller has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayhereby. The execution and delivery of this Agreement and all agreements, documents, certificates or instruments being delivered pursuant to or in connection with the consummation of the Merger and the other transactions contemplated by this Agreement (the "Transaction Documents") and the consummation of the transactions contemplated hereby by the Company Seller have been duly authorized by all necessary corporate action on the part of the CompanySeller, subject only to the required receipt approval of the Company Stockholder ApprovalMerger by Seller's stockholders under Section 1101 of the California Code; the vote of Seller's stockholders required to approve this Agreement and the Merger is (i) a majority of the outstanding shares of Seller Common Stock, (ii) a majority of the outstanding shares of Seller Series A, Seller Series B and Seller Series C, voting together as one class, and (iii) a majority of the outstanding shares of Seller Series D, each on the record date for the Seller Meeting (as defined in Section 3.21), at which a quorum is present. This Agreement has been duly executed and delivered by the Company Seller and constitutes the valid and binding obligation of the CompanySeller, enforceable against Seller in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”").
(b) The execution and delivery of this Agreement by the Company do Seller does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall hereby will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation or By-laws Bylaws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanySeller, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries Seller is a party or by which any of them it or any of their its properties or assets may be bound, or (iii) subject to obtaining conflict with, violate, or cause the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) termination of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company Seller or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, cancellations or accelerations or losses thatwhich are not, individually or in the aggregate, reasonably likely to have not had, and would not reasonably be expected to result in, a Company Seller Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice declaration or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal administrative agency or judicial commission or arbitral body other governmental authority or instrumentality (each, a “"Governmental Entity”") or person or entity is required by or with respect to the Company or any of its Subsidiaries Seller in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreementhereby, except as set forth in Schedule 3.03 hereto or for (i) the filing of the Certificate of Merger with the Delaware Secretary Department of State and appropriate corresponding documents with of the appropriate authorities State of other states in which the Company is qualified as a foreign corporation to transact businessCalifornia, (ii) the filing of the Proxy Statement (as defined in Section 3.21 below) with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations laws of The Nasdaq Stock Market any foreign country and (viiv) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually not materially interfere with the operations of any material facility of Seller or in the aggregate, otherwise be reasonably be expected likely to result in have a Company Seller Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, claim, pledge, lien, charge charge, encumbrance, easement, conditional sale or encumbrance of any natureother title retention agreement, whether arising by contract covenant or by operation of law similar restriction or right (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, including, without limitation, any Company Material Contract (as defined in Section 3.12), or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivvi) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect. Except as set forth in Section 3.4(c) of the Company Disclosure Schedule, the Company is not, and will not be, required to give any notice to or obtain any consent, waiver, authorization or approval under any Company Material Contract in connection with the execution and delivery of this Agreement or the consummation or performance of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 165 and Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) any necessary filings, procedures and approvals with respect to governmental contracts listed in Section 3.4(c) of the Company Disclosure Schedule, (v) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Gensym Corp)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, Agreement and perform its obligations hereunder and, subject only subject, in the case of the Merger, to obtaining the affirmative vote (in person or by proxy) of the holders of a majority of the outstanding shares of Company Common Stock at the Company Meeting, or any adjournment or postponement thereof, in favor of the adoption of this Agreement (the “Company Voting Proposal”) by ” and such approval and adoption having been made in accordance with the Company’s stockholders under the DGCL (DGCL, the “Company Stockholder Approval”), ) to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors unanimously (i) determined that the Merger Merger, on the terms and this Agreement are subject to the conditions set forth herein, is fair to and in the best interests of the Company and its stockholders, (ii) approved and declared advisable this Agreement, the Merger and the transactions contemplated by this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and (the approval of the Merger“Company Board Recommendation”), and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company execution, delivery and performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement not to be subject to any state takeover law or similar law that might otherwise apply to such execution, delivery, performance or consummation; provided, however, that no representation or warranty is made in this Agreementclause (iv) with respect to Section 203 of the DGCL, which is addressed in Section 3.21. Assuming the accuracy of the representations and warranties of the Parent and Merger Sub in Section 4.6, the Merger or any other transactions contemplated by this Agreementexecution, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement or performance or compliance by the Company with any of the terms and conditions hereof shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or Byby-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) subject to obtaining the Company Stockholder Approval (in the case of the Merger) and compliance with the requirements specified in clauses (i) through (v) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation, in each case issued, granted or promulgated by any court, arbitrational tribunal, administrative agency or commission or other governmental or regulatory authority, agency or instrumentality (a “Governmental Entity”) and applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets or (iii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or trigger any additional payment obligations under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s assets of the Company or any of its Subsidiary’s assets Subsidiaries under, any of the terms, conditions or provisions of any loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, lease, sublease, license, contract or other agreement, instrument or obligation arrangement, whether written or oral (each, a “Contract”) to which the Company or any of its Subsidiaries is a party or by which any of them the Company’s or any of their its Subsidiaries’ respective properties or assets (whether tangible or intangible) may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations conflicts or losses violations that, individually or in the aggregate, have not had, and would not be reasonably be expected likely to result inhave, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) or any other Antitrust Law, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State State, (iii) filings required under, and appropriate corresponding documents compliance with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessrequirements of, (ii) the filing of the Proxy Statement with the Securities Act and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended 1934 (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations of The Nasdaq Stock Market Market, (iv) the consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings set forth on Section 3.4(c) of the Company Disclosure Letter and (viv) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The Assuming the accuracy of the representations and warranties of the Parent and Merger Sub in Section 4.6, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Merger and the other transactions contemplated by this AgreementCompany may vote.
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Authority; No Conflict; Required Filings and Consents. (a) The Company Seller has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company Seller have been duly authorized by all necessary corporate action on the part of the CompanySeller, subject only to the required receipt approval of the Company Stockholder ApprovalMerger by Seller's stockholders under the DGCL. The affirmative vote of the holders of a majority of the shares of Seller Common Stock outstanding on the record date for the Seller Meeting is the only vote by Seller's stockholders required to approve the Merger. This Agreement has been duly executed and delivered by the Company Seller and constitutes the valid and binding obligation of the CompanySeller, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”").
(b) The Except as set forth on Schedule 3.03(b), the execution and delivery of this Agreement by the Company do Seller does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.this
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice declaration or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal administrative agency or judicial commission or arbitral body other governmental authority or instrumentality (each, a “"Governmental Entity”") is required by or with respect to the Company Seller or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreementhereby, except for (i) the filing of the pre-merger notification report under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended, ("HSR Act"), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessState, (iiiii) the filing of the Joint Proxy Statement (as defined in Section 3.16 below) with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, laws and (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Seller Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
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Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into execute and deliver this Agreement, to consummate the transactions contemplated hereby and to perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayhereunder. The execution and delivery of this Agreement by the Company and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company, subject only to Company and no additional corporate proceedings on the required receipt part of the Company Stockholder Approvalare necessary to authorize this Agreement or the consummation of the transactions contemplated hereby other than in the case of the consummation of the Merger, obtaining the Required Company Shareholder Vote. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes the a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of except that such enforceability (a) may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting or relating to or affecting creditors’ rights generally and (b) is subject to general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)of equity.
(b) The Special Committee, at a meeting duly called and held, unanimously determined that the Merger is fair and in the best interests of the Company and its shareholders, approved this Agreement in accordance with the provisions of the NJBCA, and directed that this Agreement be submitted to the Company Board for its approval and recommendation that the shareholders of the Company vote in favor of the approval of this Agreement. The Company Board, at a meeting duly called and held, unanimously determined that the Merger is fair and in the best interests of the Company and its shareholders, approved this Agreement in accordance with the provisions of the NJBCA, and directed that this Agreement be submitted to the shareholders of the Company for their approval and resolved to recommend that the shareholders of the Company vote in favor of the approval of this Agreement.
(c) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter Documents or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyCharter Documents, (ii) except as set forth on Section 3.4(c)(ii) of the Company Disclosure Letter conflict with, or result in any material violation or breach of, or constitute (with or without notice or lapse of time, or both) a material default (or give rise to a right of termination, cancellation cancellation, modification or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty or increased liabilities or fees or the loss of a benefit under or result in the imposition of any mortgage, right of first refusal, claim, license, limitation in voting rights, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s Subsidiaries’ assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation Company Material Contract to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Required Company Stockholder Approval Shareholder Vote and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c3.4(d), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, writ, decree, statute, law, ordinance, rule rule, determination, award or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and clause (iii) of this Section 3.4(b3.4(c) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations conflicts or losses violations that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, in a Company Material Adverse Effect.
(cd) No Except as set forth on Section 3.4(c) of the Company Disclosure Letter, no consent, approval, action, license, permit, order order, certification, concession, franchise or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county state or local, U.S. or any supranational foreign court, arbitrational tribunal, administrative agency or non-U.S., government, political subdivision, governmental, legislative, commission or other governmental or regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and applicable foreign antitrust or merger control laws, (ii) the filing of the Certificate of Merger with the Delaware New Jersey Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessbusiness in order to continue such qualification, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and a Schedule 13E-3 of the Company relating to the Merger (the “Schedule 13E-3”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities lawsthe filing of a notice with The Nasdaq Stock Market, (vvi) such filings as may be required by the rules filing of a Form 15 with the SEC and regulations appropriate documentation to effect the delisting of Company Common Stock from The Nasdaq Stock Market for trading upon consummation of the Merger, and (vivii) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would notnot be, individually or in the aggregate, reasonably be expected likely to result in a Company Material Adverse Effect.
(de) The affirmative vote for adoption in favor of the approval of this Agreement (the “Company Voting Proposal Proposal”) by the holders of at least a majority of the votes cast by the holders of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders shareholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Shareholder Vote”) at the Company Meeting where a quorum is present is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption approval of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, Contracts, debentures, warrants, options, series of capital stock, notes or other Indebtedness of the Company or its Subsidiaries having the right to vote (“Voting Debt”) (or convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company or its Subsidiaries may vote.
(f) The shareholders of the Company are not entitled to any dissenters’, appraisal or similar rights under the NJBCA or otherwise in connection with the Merger.
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Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to perform its obligations and consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, (i) the board of directors of the Company (the “Company Board”), Special Committee at a meeting duly called and held, by the unanimous vote of all directors unanimously (iA) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (iiB) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, and (iiiC) directed that this Agreement be submitted to the Company Board for their approval and recommendation that the stockholders of the Company vote in favor of the adoption of this Agreement, and (ii) the Company Board, upon the recommendation of the Special Committee, at a meeting duly called and held, (A) determined that the Merger is fair and in the best interests of the Company and its stockholders, (B) approved this Agreement and declared its advisability in accordance with the provisions of the DGCL, and (C) directed that this Agreement be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement by the Company and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter Documents or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyCharter Documents, (ii) except as set forth on Section 3.4(b) of the Company Disclosure Schedule conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation cancellation, modification or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty or increased liabilities or fees or the loss of a benefit under or result in the imposition of any mortgage, right of first refusal, claim, license, limitation in voting rights, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s Subsidiaries’ assets under, any of the terms, conditions or provisions of any noteContract (except for any Contract with a customer, bonddistributor or reseller that is not a Company Material Contract), mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivvi) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, writ, decree, statute, law, ordinance, rule rule, award or regulation of or promulgated by any Governmental Entity and applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations modifications, accelerations, losses, penalties, increased fees, liabilities, losses of material benefit, Liens, and for any consents or losses waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, in a Company Material Adverse Effect.
(c) No consent, approval, action, license, permit, order order, certification, concession, franchise or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county state or local, U.S. or any supranational foreign court, arbitrational tribunal, administrative agency or non-U.S., government, political subdivision, governmental, legislative, commission or other governmental or regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and applicable foreign antitrust or merger control laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessbusiness in order to continue such qualification, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) and a Schedule 13E-3 of the Company relating to the Merger (the “Schedule 13E-3”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules Filing of a Form 15 with the SEC and regulations appropriate documentation to effect the delisting of The the Company Common Stock from the Nasdaq Stock Market for trading upon consummation of the Merger and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would notnot be, individually or in the aggregate, reasonably be expected likely to result in a Company Material Adverse Effect.
(d) The affirmative vote for approval and adoption of the Company Voting Proposal by the holders of at least a majority in voting power of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the approval and adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, Contracts, debentures, warrants, options, series of capital stock other than the Company Common Stock, notes or other Indebtedness of the Company or its Subsidiaries having the right to vote (“Voting Debt”) (or, except for the Company’s Convertible Notes, convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company are required to vote.
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Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the affirmative vote for approval and adoption of this Agreement (the “Company Voting Proposal”) by the holders of a majority in voting power of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider adoption of this Agreement under the DGCL (the “Company Stockholder Approval”), to perform its obligations and consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, (i) the board of directors of the Company (the “Company Board”), Special Committee at a meeting duly called and held, by the unanimous vote of all directors unanimously (iA) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (iiB) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, and (iiiC) directed that this Agreement be submitted to the Company Board for their approval and recommendation that the stockholders of the Company vote in favor of the adoption of this Agreement, and (ii) the Company Board, upon the recommendation of the Special Committee, at a meeting duly called and held, (A) determined that the Merger is fair and in the best interests of the Company and its stockholders, (B) approved this Agreement and declared its advisability in accordance with the provisions of the DGCL, and (C) directed that this Agreement be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter Documents or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyCharter Documents, (ii) except as set forth in Section 3.4(b)(ii) of the Company Disclosure Schedule conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation cancellation, modification or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty or increased liabilities or fees or the loss of a benefit under or result in the imposition of any mortgage, right of first refusal, claim, lease, license, limitation in voting rights, security interest, pledge, lien, restriction, encroachment, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s Subsidiaries’ assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material lease, license, contract contract, subcontract, binding understanding, franchise, indenture, note, option, insurance policy, benefit plan or other binding agreement, instrument or obligation obligation, written or oral (each, a “Contract”), to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, except for any such conflicts, violations, breaches, defaults, terminations, cancellations, modifications, accelerations, losses, penalties, increased fees, liabilities, losses of material benefit, Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivvii) of Section 3.4(c), conflict with or violate in any material respect any permit, concession, franchise, license, judgment, injunction, order, writ, decree, statute, law, ordinance, rule rule, determination, award or regulation of or promulgated by, or settlement subject to any Governmental Entity (“Order”) and applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No material consent, approval, Action, license, permitOrder, order certification, franchise or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county state or local, U.S. or any supranational foreign court, arbitrational tribunal, administrative agency or non-U.S., government, political subdivision, governmental, legislative, commission or other governmental or regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and the notification or approval under the foreign antitrust or merger control laws listed in Section 3.4(c)(i) of the Company Disclosure Schedule, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessbusiness in order to continue such qualification, (iiiii) the filing of the Proxy Statement (as defined herein) with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the applicable requirements of state securities or “blue sky” laws, (v) any filings required under the rules and regulations of The NASDAQ National Market, (vi) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 or otherwise under the Exchange Act Act, as may be required in connection with this Agreement and the transactions contemplated hereby, (ivvii) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, ordersOrders, authorizations, registrations, declarations, notices and filings whichlisted in Section 3.4(c)(vii) of the Company Disclosure Schedule, if not obtained and (viii) such notices, consents, approvals or made, filings that the failure to make or obtain would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Approval is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the approval and adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, Contracts, debentures, warrants, options, series of capital stock, notes or other Indebtedness of the Company or its Subsidiaries having the right to vote (“Voting Debt”) (or convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or its Subsidiaries may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to the extent required by applicable law, to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Offer and the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, DGCL and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having required by applicable law. Assuming the effect accuracy of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreementrepresentations and warranties of the Parent and the Purchaser in Section 4.6, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder ApprovalApproval to the extent required by applicable law. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws bylaws of the Company or of the charter, by-lawsbylaws, or other organizational document of any Subsidiary subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiarysubsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation agreement to which the Company or any of its Subsidiaries subsidiaries is a party or by which any of them or any of their properties or assets may be bound, bound or (iii) subject to obtaining the Company Stockholder Approval (to the extent required by applicable law) and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, licensePermit, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect. For purposes of this Agreement, a “Permit” is any permit, concession, franchise or right, in each case that is issued by a Governmental Entity.
(c) No Permit, consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States foreign or foreign federaldomestic court, statearbitrational tribunal, county administrative agency or local, commission or any supranational other governmental or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), if applicable, and any other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with Offer Documents, Schedule 14D-9 and (if required) the Securities and Exchange Commission proxy or information statement or proxy statement (the “SECProxy Statement”) with respect to the Company Meeting (as defined below) with the SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, including the Agreement 8-K, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and any environmental, health or safety laws, including those of the FDA, and (vi) such other Permits, consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, are not reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The Assuming the accuracy of the representations and warranties of the Parent and the Purchaser in Section 4.6, to the extent stockholder approval is required by applicable law, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Merger and the other transactions contemplated by this AgreementCompany may vote.
Appears in 1 contract
Samples: Merger Agreement (Trimeris Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to receipt of the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Shareholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the The Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors Board has (i) determined that deemed the Merger and this Agreement are fair to advisable and in the best interests of the Company and its stockholdersshareholders, (ii) adopted this Agreement, approved the Merger upon the terms and this Agreement subject to the conditions set forth herein and declared their advisability in accordance with approved the provisions of Ancillary Agreements, including the DGCLShareholder Support Agreements, and the transactions contemplated thereby upon the terms and subject to the conditions set forth therein, and (iii) directed that recommended the approval of this Agreement and by the Merger be submitted to the stockholders shareholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreementcollectively, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b“Company Board Recommendation”), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement and each Ancillary Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws Organizational Documents of the Company or any of the charter, by-laws, or other organizational document of any Subsidiary of the Companyits Subsidiaries, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, modification, amendment, cancellation or acceleration of any obligation or loss of any material benefitbenefit or to increased, additional, accelerated or guaranteed rights or entitlements of any Person) under, require a notice, consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Liens on the Company’s or any of its Subsidiary’s Subsidiaries’ assets under, any of the terms, conditions or provisions of any noteCompany Material Contract, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through (iviii) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule license or regulation Law applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, modifications, amendments, cancellations, accelerations accelerations, losses, rights, entitlements, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. The Company has taken all actions necessary prior to the date hereof such that the requirements set forth in Chapters 110C, 110D and 110F of the Massachusetts General Laws and any other “moratorium,” “control share acquisition,” “business combination,” “fair price,” or other form of anti-takeover Laws that may purport to be applicable shall not apply with respect to or as a result inof the Merger, a Company Material Adverse Effectthis Agreement, the Shareholder Support Agreements or any other transactions contemplated hereby or thereby.
(c) No action by, consent, approval, license, permit, order Order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre‑merger notification requirements under the HSR Act and any applicable foreign Antitrust Laws, (ii) the filing of the Certificate Articles of Merger with the Delaware Secretary of State the Commonwealth of Massachusetts and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, ordersOrders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Crane Co /De/)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL and the Company’s Certificate of Incorporation (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, DGCL and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundMaterial Contract, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iviii) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would not reasonably be expected to result inhave a material and adverse effect on the business of the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal arbitrational tribunal, administrative agency or judicial commission or arbitral body other governmental or regulatory authority, agency or instrumentality (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Dell Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority (corporate and other) to enter into execute and deliver this Agreement, Agreement and the other agreements contemplated hereby and to perform its obligations hereunder and thereunder. The execution and delivery by the Company of this Agreement and the other agreements contemplated hereby and, subject to obtaining the Company Stockholder Approval, which is the only to approval required from the adoption Company Stockholders, the performance by the Company of this Agreement (and the “Company Voting Proposal”) consummation by the Company’s stockholders under Company of the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated hereby and thereby have been duly and validly authorized by this Agreementall necessary corporate and other action on the part of the Company. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”)Company, at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company Stockholders vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has and all other agreements contemplated hereby have been or will be as of the Closing Date duly and validly executed and delivered by the Company and constitutes the constitute or will constitute a valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to terms hereof or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)thereof.
(b) The Subject to the filing of the Certificate of Merger as required by the DGCL, neither the execution and delivery by the Company of this Agreement or any other agreement contemplated hereby, nor the performance by the Company do notof its obligations hereunder or thereunder, and nor the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall nothereby or thereby, will (i) conflict with, with or result in any violation or breach of, violate any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary Organizational Documents of the Company, each as amended or restated to date, or the Organizational Documents of any Subsidiary, each as amended or restated to date, (ii) require on the part of the Company, any Subsidiary or any Company Stockholder any notice to or filing with, or any permit, authorization, consent or approval of, any Governmental Entity, (iii) except as provided in Section 3.4(b)(iii) of the Company Disclosure Schedules, conflict with, or result in any violation or a breach of, or constitute (with or without due notice or lapse of time, time or both) a default (or give rise to a right of terminationunder, cancellation or result in the acceleration of any obligation or loss of any material benefit) obligations under, create in any party the right to accelerate, terminate, modify or cancel, or require a any notice, consent or waiver under, constitute any contract, lease, sublease, license, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, instrument of Indebtedness, Lien or other arrangement to which the Company or any Subsidiary is a change in control underparty or by which the Company or any Subsidiary is bound or to which any of the assets of the Company or any Subsidiary are subject, require the payment of a penalty under or (iv) result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance Lien upon any assets of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, Subsidiary or (iiiv) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permitorder, concession, franchise, license, judgmentwrit, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company Company, or any Subsidiary or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company or any of its Subsidiaries Subsidiary in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Demandware Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”)) to the extent required by applicable Law consummate the Merger. The Company Board, consummate at a meeting duly called and held, duly adopted resolutions (i) approving and declaring the advisability of this Agreement, the Offer, the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called ii) determining and held, by the unanimous vote of all directors (i) determined declaring that the Merger and this Agreement are fair to and it is in the best interests of the Company and its stockholders, (ii) approved the stockholders of the Company that the Company enter into this Agreement and consummate the Merger and this Agreement and declared their advisability in accordance with that the provisions stockholders of the DGCLCompany tender their shares of Company Common Stock pursuant to the Offer, in each case on the terms and subject to the conditions set forth herein, (iii) directed declaring that the terms of the Offer and the Merger are fair to the Company and the Company’s stockholders, (iv) resolving to recommend that the Company’s stockholders accept the Offer and tender their shares of Company Common Stock pursuant to the Offer and (v) directing that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved resolving to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated required by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayapplicable Law. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder ApprovalApproval to the extent required by applicable Law to consummate the Merger. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Parent and the Purchaser, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and (assuming the receipt of the Company Stockholder Approval to the extent required by applicable Law to consummate the Merger) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter or the Company By-laws of the Company or of the charter, by-laws, bylaws or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law Liens (“other than Permitted Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation Contract to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decreeOrder, statute, lawLaw, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have are not had, material to the Company and would not reasonably be expected to result in, its Subsidiaries (taken as a Company Material Adverse Effectwhole).
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the HSR Act and any other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with Offer Documents, the Securities Schedule 14D-9 and Exchange Commission (as contemplated by this Agreement) the proxy or information statement (the “SECProxy Statement”) with respect to the Company Meeting with the SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities lawsLaws, (v) such filings as may be required by the rules and regulations of The the Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would notthat, individually or in the aggregate, reasonably would not be expected material to result the Company and its Subsidiaries (taken as a whole). The information provided in a the document titled “Client Revenue by Country Anit-Trust” (sic) with reference number 2.6.15 uploaded on March 27, 2017 to the online virtual data room established for the purposes of due diligence of the Company Material Adverse Effectand its Subsidiaries, is true, accurate and not misleading.
(d) The If a vote of stockholders of the Company is required by the DGCL, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for at the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and or for the consummation by the Company of the Merger Merger. There are no bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
(e) The Compensation Committee of the Company Board, or a committee of the Company Board consisting solely of independent directors (as defined in the Nasdaq Marketplace Rules), has taken, at a duly convened meeting thereof, all such actions as may be required to cause to be exempted under Rule 14d-10(d)(2) under the Exchange Act, any and all employment compensation, severance and employee benefit agreements and arrangements that have been entered into or granted by the other transactions contemplated by this AgreementCompany or any of its Subsidiaries with or to directors, officers, or employees of the Company or any of its Subsidiaries, to cause such agreements and arrangements satisfy the non-exclusive safe harbor provisions of Rule 14d-10(d)(2) under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Tangoe Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority (corporate and other) to enter into execute and deliver this Agreement, Agreement and the other agreements contemplated hereby and to perform its their respective obligations hereunder and thereunder. The execution and delivery by the Company of this Agreement and the other agreements contemplated hereby and, subject to obtaining the Company Stockholder Approval, which is the only to approval required from the adoption Company Stockholders, the performance by the Company of this Agreement (and the “Company Voting Proposal”) consummation by the Company’s stockholders under Company of the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated hereby and thereby have been duly and validly authorized by this Agreementall necessary corporate and other action on the part of the Company. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”)Company, at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has and all other agreements contemplated hereby have been or will be as of the Closing Date duly and validly executed and delivered by the Company and constitutes the or will constitute a valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The On the date hereof, the Company shall deliver to each Company Equityholder the Information Statement and not less than five (5) Business Days prior to such delivery, the Company delivered a draft thereof to the Buyer. Such Information Statement (in the form in which it will be delivered to the Company Equityholders) will comply with the requirements of Section 6.2. A true, correct and complete copy of such Information Statement (in the form in which it will be delivered to the Company Equityholders) has been delivered by the Company to the Buyer.
(c) Subject to the filing of the Certificate of Merger as required by the DGCL, neither the execution and delivery by the Company of this Agreement or any other agreement contemplated hereby, nor the performance by the Company do notof its obligations hereunder or thereunder, and nor the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall nothereby or thereby, will (i) conflict with, with or result in any violation or breach of, violate any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary Organizational Documents of the Company, each as amended or restated to date, or the Organizational Documents of any Subsidiary, each as amended or restated to date, (ii) require on the part of the Company, any Subsidiary or any Company Stockholder any notice to or filing with, or any permit, authorization, consent or approval of, any Governmental Entity, (iii) conflict with, or result in any violation or a breach of, or constitute (with or without due notice or lapse of time, time or both) a default (or give rise to a right of terminationunder, cancellation or result in the acceleration of any obligation or loss of any material benefit) obligations under, create in any party the right to accelerate, terminate, modify or cancel, or require a any notice, consent or waiver under, constitute any contract, lease, sublease, license, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, instrument of Indebtedness, Lien or other arrangement to which the Company or any Subsidiary is a change in control underparty or by which the Company or any Subsidiary is bound or to which any of the assets of the Company or any Subsidiary are subject, require the payment of a penalty under or (iv) result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance Lien upon any assets of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, Subsidiary or (iiiv) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permitorder, concession, franchise, license, judgmentwrit, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company Company, any Subsidiary or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of the foregoing clauses (iiiii), (iv) and (iii) of this Section 3.4(bv) for any such notices, consents and waivers that, if not obtained or made, and such conflicts, violations, breaches, defaults, accelerations, terminations, modifications, cancellations, accelerations or losses Liens and violations that, individually or in the aggregate, have not had, been and would not reasonably be expected to result inbe material to the Company and the Subsidiaries, taken as a Company Material Adverse Effectwhole.
(cd) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company or any of its Subsidiaries Subsidiary in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessbusiness and except for any consent, (ii) approval, license, permit, order, authorization, registration, declaration, notice or filing, the filing failure of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934which to obtain, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules submit or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would notfile, individually or in the aggregate, has not been and would not reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of be material to the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this AgreementSubsidiaries, taken as a whole.
Appears in 1 contract
Samples: Merger Agreement (Bottomline Technologies Inc /De/)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement and the approval of the Merger (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and adopted this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, Merger and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state anti-takeover statute, law or similar law regulation (including, without limitation, a “fair price,” “moratorium,” or “control share acquisition” statute) that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The Except as set forth in Section 3.3(b) of the Company Disclosure Schedule, the execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or Byby-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, bound or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c)3.3(c) below, conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b3.3(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not could constitute or could reasonably be expected to result in, constitute a Company Material Adverse Effect. Except as set forth in Section 3.3(b) of the Company Disclosure Schedule, the execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the transactions contemplated by this Agreement shall not, conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any Lien on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any Key Contract. Section 3.3(b) of the Company Disclosure Schedule lists all consents, waivers and approvals under any of the Company’s or any of its Subsidiaries’ agreements, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including agency or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, each a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any applicable foreign notification laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State of the State of Delaware and appropriate corresponding documents with the Secretaries of appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or 13, Rule 14a-12 or other relevant sections under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, hereby and (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations securities laws of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effectany foreign country.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Stockholders Meeting is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. Section 3.2(d) of the Company Disclosure Schedule lists all bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Danaher Corp /De/)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to receipt of the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the The board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors has (i) determined that deemed the Merger and this Agreement are fair to advisable and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted in accordance with the DGCL upon the terms and subject to the stockholders of the Company for their adoption conditions set forth herein and approval and resolved to recommend that the stockholders of the Company vote in favor of (iii) recommended the adoption of this Agreement and by the approval stockholders of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayCompany. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws Organizational Documents of the Company or any of the charter, by-laws, or other organizational document of any Subsidiary of the Companyits Subsidiaries, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent consent, waiver, or waiver under, constitute a change in control delivery of notice under, require the payment of a penalty under or result in the imposition of any mortgageLiens, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“other than Permitted Liens”), on the Company’s or any of its Subsidiary’s Subsidiaries’ assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundMaterial Contract, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iviii) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation Law applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse EffectState.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption approval of this Agreement the principal terms of the Merger (the “Company Voting Proposal”) by the Company’s stockholders shareholders under the DGCL CGCL (the “Company Stockholder Shareholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholdersshareholders, (ii) approved the Merger and this Agreement and declared their advisability approved the Agreement of Merger in accordance with the provisions of the DGCLCGCL, (iii) directed that this Agreement and the principal terms of the Merger be submitted to the stockholders shareholders of the Company for their adoption and approval and resolved to recommend that the stockholders shareholders of the Company vote in favor of the adoption approval of this Agreement and the approval principal terms of the Merger, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation or By-laws of the Company or of the charter, by-laws, memorandum or articles of association or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundMaterial Contract (as defined in Section 3.10 hereof), or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c3.3(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b3.3(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would may not reasonably be expected to result in, have a Company Material Adverse Effect. Section 3.3(b) of the Company Disclosure Schedule lists all material consents, waivers and approvals under any Company Material Contract required to be obtained in connection with the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including agency or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and compliance with other applicable Antitrust Laws, (ii) the filing of the Certificate Agreement of Merger with the Delaware California Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Joint Proxy Statement Statement/Prospectus with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 165 and Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations securities laws of The Nasdaq Stock Market any foreign country and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would notcould not reasonably be expected, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Shareholders Meeting is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption approval of this Agreement the principal terms of the Merger and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to assuming that the adoption Merger is consummated in accordance with Section 251(h) of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”)DGCL, consummate the Merger and the other transactions contemplated by this AgreementMerger. Without limiting the generality of the foregoing, the board of directors of the Company (the “The Company Board”), at a meeting duly called and held, by the unanimous vote of all directors directors, duly adopted resolutions (i) determined approving and declaring the advisability of this Agreement, the Merger, the Offer and the other transactions contemplated by this Agreement, (ii) declaring that the Merger and this Agreement are fair to and it is in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption that the Company enter into this Agreement and approval consummate the Merger and resolved to recommend that the stockholders of the Company vote accept the Offer and tender their shares of Company Common Stock pursuant to the Offer, in favor each case on the terms and subject to the conditions set forth herein, (iii) declaring that the terms of the adoption of this Agreement Offer and the approval of Merger are fair to the Merger, Company and the Company’s stockholders and (iv) recommending that the stockholders of the Company accept the Offer and tender their shares of Company Common Stock pursuant to the extent necessary, adopted resolutions having Offer. Assuming the effect accuracy of causing the Company not to be subject to any state takeover law or similar law representations and warranties of the Parent and the Purchaser in Section 4.6 and that might otherwise apply to this Agreementthe Merger is consummated in accordance with Section 251(h) of the DGCL, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Parent and the Purchaser, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and (assuming that the Merger is consummated in accordance with Section 251(h) of the DGCL) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws bylaws of the Company or any of the charter, by-laws, or other organizational document of any Subsidiary of the Companyits Subsidiaries, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) benefit under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any noteCompany Material Contract, bond, mortgage, indenture, lease, license, contract (iii) result in the creation of a Lien other than any Permitted Lien upon any of the respective properties or other agreement, instrument or obligation to which assets of the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iiiiv) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii), (iii) and (iiiiv) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries under applicable Law or listing requirements in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the HSR Act, and any other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement Offer Documents and the Schedule 14D-9 with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market Nasdaq, and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, are not reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption Assuming the accuracy of the Company Voting Proposal by Parent’s and the holders of at least a majority Purchaser’s representation and warranty set forth in Section 4.6 and that the Merger is consummated in accordance with Section 251(h) of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only DGCL, no vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, is necessary for the adoption of this Agreement and or for the consummation by the Company of the Merger Merger. There are no bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
(e) The Compensation Committee of the Company Board, or a committee of the Company Board consisting solely of directors that qualify as “independent directors” for purposes of the continued listing requirements of Nasdaq, has taken, at a duly convened meeting thereof, all such actions as may be required to cause to be exempted under Rule 14d-10(d)(2) under the Exchange Act, any and all employment compensation, severance and employee benefit agreements and arrangements that have been entered into or granted by the other transactions contemplated by this AgreementCompany or any of its Subsidiaries with or to directors, officers, or employees of the Company or any of its Subsidiaries, to cause such agreements and arrangements to satisfy the non-exclusive safe harbor provisions of Rule 14d-10(d)(2) under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Epizyme, Inc.)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) except for any consents or notices that may be required under the Company Leases, conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c3.5(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b3.5(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 165 and Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be the notifications required by the rules and regulations Nasdaq Listing Qualifications Hearings Department in connection with the Company’s appeal of The the Nasdaq Stock Market Market’s de-listing order dated November 24, 2008 and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. Other than the Notes, there are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (I Many Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement and the approval of the Merger (the “"Company Voting Proposal”") by the Company’s 's stockholders under the DGCL (the “"Company Stockholder Approval”"), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “"Company Board”"), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and adopted this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, Merger and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law (including Section 203 of the DGCL) or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to Stockholder's Agreement or the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayVoting Agreements. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Significant Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s 's or any of its Subsidiary’s 's assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c3.3(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b3.3(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses thatas would not, individually or in the aggregate, have not had, and would not reasonably be expected to result in, in a -11- 19 Company Material Adverse Effect. To the Company's knowledge, Section 3.3(b) of the Company Disclosure Schedule lists all consents, waivers and approvals under any of Company's or any of its Subsidiaries' material agreements, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal arbitration tribunal, administrative agency or judicial commission or arbitral body other governmental or regulatory authority, agency or instrumentality, foreign or domestic (each, a “"Governmental Entity”") is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act") and any consents, approvals and filings required under applicable foreign antitrust laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities Secretaries of State of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Joint Proxy Statement Statement/Prospectus (as defined in Section 3.4(c)) with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 (or other applicable rule) of the Exchange Act and materials under Rule 165 and Rule 425 (or other applicable rules) of the Securities Act of 1933, as amended (the "Securities Act") and the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market laws and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal this Agreement by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Meeting is the only vote of the holders of any class or series of the Company’s 's capital stock or other securities, whether debt securities or equity securities, of the Company necessary for the adoption of to adopt this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Perkinelmer Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, to perform its obligations hereunder and, subject only assuming that the Merger is consummated in accordance with Section 251(h) of the DGCL, to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this AgreementMerger. Without limiting the generality of the foregoing, the board of directors of the Company (the “The Company Board”), at a meeting duly called and held, by the unanimous vote of all directors directors, duly adopted resolutions (i) determined approving and declaring the advisability of this Agreement, the Merger, the Offer and the other transactions contemplated by this Agreement, (ii) declaring that the Merger and this Agreement are fair to and it is in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption that the Company enter into this Agreement and approval consummate the Merger and resolved to recommend that the stockholders of the Company vote accept the Offer and tender their shares of Company Common Stock pursuant to the Offer, in favor each case on the terms and subject to the conditions set forth herein, (iii) declaring that the terms of the adoption of this Agreement Offer and the approval of Merger are fair to the Merger, Company and the Company’s stockholders and (iv) recommending that the stockholders of the Company accept the Offer and tender their shares of Company Common Stock pursuant to the extent necessary, adopted resolutions having Offer. Assuming the effect accuracy of causing the Company not to be subject to any state takeover law or similar law representations and warranties of the Parent and the Purchaser in Section 4.6 and that might otherwise apply to this Agreementthe Merger is consummated in accordance with Section 251(h) of the DGCL, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only and no further action on the Company’s part is necessary to authorize the required receipt execution, delivery or performance of this Agreement by the Company Stockholder ApprovalCompany. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Parent and the Purchaser, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and (assuming that the Merger is consummated in accordance with Section 251(h) of the DGCL) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, : (i) conflict withcontravene, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute a default (with or without notice or notice, lapse of timetime or otherwise), or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, result in the creation of a material Lien upon any of the respective properties or assets of the Company or any of its Subsidiaries, or require a consent or waiver under, constitute a change in control under, require (A) the payment Organizational Documents of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any Company and each of its Subsidiary’s assets under, Subsidiaries or (B) any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, Material Contract; or (iiiii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (iii)(B) and (iiiii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would not reasonably be expected to result inhave, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries under any applicable law in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the HSR Act, and any other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement Offer Documents and the Schedule 14D-9 with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market Nasdaq, and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would notnot have, individually or in the aggregate, and would not reasonably be expected to result in have, a Company Material Adverse Effect.
(d) The affirmative vote for adoption Assuming the accuracy of the Company Voting Proposal by Parent’s and the holders of at least a majority Purchaser’s representation and warranty set forth in Section 4.6 and that the Merger is consummated in accordance with Section 251(h) of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only DGCL, no vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, is necessary for the adoption of this Agreement and or for the consummation by the Company of the Merger Merger. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
(e) The Compensation Committee of the Company Board, or a committee of the Company Board consisting solely of directors that qualify as “independent directors” for purposes of the continued listing requirements of Nasdaq, has taken, at a duly convened meeting thereof, all such actions as may be required to cause to be exempted under Rule 14d-10(d)(2) under the Exchange Act, any and all employment compensation, severance and employee benefit agreements and arrangements that have been entered into or granted by the other transactions contemplated by this AgreementCompany or any of its Subsidiaries with or to directors, officers, or employees of the Company or any of its Subsidiaries, to cause such agreements and arrangements to satisfy the non-exclusive safe harbor provisions of Rule 14d-10(d)(2) under the Exchange Act.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into execute and deliver this AgreementAgreement and, subject to the approval of this Agreement by the Company’s shareholders under the VBCA (the “Company Shareholder Approval”), to perform its obligations hereunder and, subject only and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors unanimously (i) determined that the Merger and adopted this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCLVBCA, and (iiiii) directed that this Agreement and the Merger be submitted to the stockholders shareholders of the Company for their adoption and approval and resolved to recommend that the stockholders shareholders of the Company vote in favor of the adoption approval of this Agreement and (the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the “Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(bBoard Recommendation”), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by each of the Buyer and the Transitory Subsidiary, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement and compliance by the Company with the terms and provisions hereof shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter Documents or By-laws any of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyDocuments, (ii) materially conflict with, or result in any material violation or breach of, or constitute (with or without notice or lapse of time, or both) a material default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s respective properties, Intellectual Property or other assets under, any of the terms, conditions or provisions of any loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, lease, license, contract or other agreement, instrument or obligation obligation, written or oral, to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundbound (each, a “Contract”) that is listed in Section 3.11(b) of the Company Disclosure Letter, or any Company Permit, or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), materially conflict with or violate in any material respect any permit, concession, franchise, license, judgment, injunction, writ, order, decree, statute, lawLaw, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.by
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, to perform its obligations hereunder and, subject only to the adoption approval of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders shareholders under the DGCL PBCL (the “Company Stockholder Shareholder Approval”), to consummate the Merger and the other transactions contemplated by this AgreementMerger. Without limiting the generality of the foregoing, the board of directors of the Company (the “The Company Board”), at a meeting duly called and held, by the unanimous vote of all directors has unanimously (i) determined that this Agreement and the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, Company; (ii) adopted this Agreement; (iii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, Merger; (iiiiv) directed that this Agreement and the Merger be submitted to the stockholders of the Company Company’s shareholders for their adoption approval; and approval and (v) resolved to recommend that the stockholders of the Company vote in favor of the adoption approval of this Agreement and by the approval Company’s shareholders. Assuming the accuracy of the Merger, representations and (iv) to warranties of the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this AgreementParent and Merger Sub in Section 3.2, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Parent and Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and (assuming the accuracy of the representations and warranties of the Parent and Merger Sub in Section 3.2 and subject to receipt of the Company Shareholder Approval) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate articles of Incorporation incorporation or By-laws bylaws (or comparable organizational documents) of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (a default with or without notice or the lapse of time, or both) a default both (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result (or, with or without notice or lapse of time, or both, would result) in the creation or imposition of any mortgageLien on any asset, security interest, pledge, lien, charge property or encumbrance right of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s Company or any of its Subsidiary’s assets Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundMaterial Contract, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c2.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties respective properties, rights or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b2.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, had and would not reasonably be expected to result in, have a Company Material Adverse EffectEffect and would not reasonably be expected to prevent, or materially impair or delay, the ability of the Company to consummate the Merger.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the HSR Act, and any other applicable Antitrust Laws, (ii) the filing of the Certificate Statement of Merger with the Delaware Secretary Department of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission proxy statement, as amended or supplemented from time to time (the “SECProxy Statement”) ), with respect to the Company Meeting with the SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market Nasdaq, and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, would not reasonably be expected to result in have a Company Material Adverse EffectEffect and would not reasonably be expected to prevent, or materially impair or delay, the ability of the Company to consummate the Merger.
(d) The affirmative vote for adoption Assuming the accuracy of the Parent’s and Merger Sub’s representation and warranty set forth in Section 3.66, the approval of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the entitled to vote, present in person or represented by proxy, at a meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal at which a quorum shall be present (the “Required Company Stockholder Shareholder Vote”) is the only consent or vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, that is necessary for the adoption approval of this Agreement and or for the consummation by the Company of the Merger and Merger. There are no bonds, debentures, notes or other indebtedness of the other transactions contemplated by this AgreementCompany having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Intricon Corp)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to the extent required by applicable law, to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger Merger, the Offer and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger Merger, the Offer and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and Agreement, to the approval of the Mergerextent required by applicable law, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger Stockholders’ Agreement, the Merger, the Offer or any other transactions contemplated by this Agreement, in each case which resolutions, except after Agreement or the date hereof to Stockholders’ Agreement and (v) recommended that the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayholders of Company Common Stock tender their shares into and accept the Offer. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder ApprovalApproval to the extent required by applicable law. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject except to the effects of extent that such enforceability (A) may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and or other similar laws relating to or affecting creditors’ rights generally generally, and (B) is subject to general equitable principles of equity. Each member of the Company Board (whether considered 1) is a “Continuing Director” defined in a proceeding the Certificate of Incorporation of the Company) and (2) is not an “Interested Stockholder” defined in equity the Certificate of Incorporation of the Company) or at law)(the affiliated with an “Bankruptcy and Equity ExceptionInterested Stockholder”). The Company is not subject to Section 2115 of the California Corporations Code.
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval (to the extent required by applicable law) and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c4.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b4.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, that have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect. Section 4.4(b) of the Company Disclosure Schedule lists all consents, waivers and approvals under any of the Company’s or any of its Subsidiaries’ agreements, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby, except for any such consents, waivers or approvals that relate to agreements, licenses and leases (A) that, neither individually nor in the aggregate, are material to the operations of the Company and its Subsidiaries, taken as a whole, (B) under which the unpaid obligations of any party to such agreement, license or lease does not exceed, as of the date of this Agreement $10,000 individually or $100,000 in the aggregate and (C) that do not by their terms provide for the payment of any financial penalty as a result of the failure to obtain any such consent, waiver of approval.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States foreign or foreign federaldomestic court, statearbitrational tribunal, county administrative agency or local, commission or any supranational or non-U.S., government, political subdivision, other governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including commission or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with Schedule TO, Offer Documents, Schedule 14D-9 and (if required by applicable law) the Securities and Exchange Commission proxy or information statement (the “SECProxy Statement”) with respect to the Company Meeting (as defined below) with the SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 165 and Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities lawslaws and the securities laws of any foreign country and the NASDAQ Marketplace Rules, and (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, have not had, and would not, individually or in the aggregate, not reasonably be expected to result in in, a Company Material Adverse Effect.
(d) The To the extent stockholder approval is required by applicable law, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Idm Pharma, Inc.)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt approval of this Agreement and the Company Stockholder ApprovalMerger by the Company’s stockholders under the DGCL. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”). On or prior to the date hereof, the Board of Directors of the Company has unanimously adopted resolutions that have (i) approved and declared advisable this Agreement and the Merger, (ii) directed that this Agreement and the Merger be submitted to the Company’s stockholders for adoption at a meeting of such stockholders and (iii) recommended that the stockholders of the Company adopt this Agreement and the Merger (with respect to subclause (iii), the “Company Recommendation”), and such resolutions, as of the date of this Agreement, have not been subsequently rescinded, modified or withdrawn in any way. The Company stockholder vote required for the adoption of this Agreement and the Merger shall be a majority of the shares of Company Common Stock outstanding on the record date for the Company Stockholders’ Meeting (the “Company Stockholder Approval”).
(b) The execution and delivery of this Agreement by the Company do does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall hereby will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or Byby-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict withexcept as set forth in the Company Disclosure Letter, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation, give rise to any obligation to make an offer to purchase any debt instrument or give rise to any loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule Law or regulation ordinance applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, cancellations or accelerations or losses thatwhich are not, individually or in the aggregate, reasonably likely to have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice declaration or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal administrative agency or judicial commission or arbitral body other governmental authority or instrumentality (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreementhereby, except for (i) the filing of the pre-merger notification report under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (“HSR Act”), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessState, (iiiii) the filing of the Joint Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities lawsLaws and the Laws of any foreign country and the European Union, and (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to assuming the adoption accuracy of this Agreement (the “Company Voting Proposal”) by representations and warranties of the Company’s stockholders under Parent and the DGCL (Merger Sub in Section 4.8 and receipt of the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreementhereby. Without limiting the generality of the foregoing, the board of directors of the Company (the “The Company Board”), at a meeting duly called and held, by the unanimous vote of all directors directors, duly adopted resolutions (i) determined determining and declaring that the Merger and this Agreement are fair to and it is in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company that the Company enter into this Agreement and consummate the Merger on the terms and subject to the conditions set forth herein, (ii) adopting, approving and declaring the advisability of this Agreement, the Merger and the other Transactions, (iii) declaring that the terms of the Merger are fair to the Company and the Company's stockholders and (iv) directing that this Agreement be submitted to the Company's stockholders at the Company Stockholders Meeting for their adoption and approval and resolved to recommend recommending that the stockholders of the Company vote in favor adopt this Agreement. Assuming the accuracy of the adoption representations and warranties of this Agreement the Parent and the approval Merger Sub in Section 4.8 and receipt of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this AgreementStockholder Approval, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement Transactions by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.the
Appears in 1 contract
Samples: Merger Agreement (Staples Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (together with any duly constituted committee thereof, the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and 8 resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company execution, delivery or performance of this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement not to be subject to any state takeover law or similar law that might otherwise apply to this Agreementsuch execution, delivery, performance or consummation. None of such actions of the Merger Company Board has been amended, rescinded or any other transactions contemplated by this Agreementmodified; provided that such actions may be amended, in each case which resolutions, except rescinded or modified after the date hereof to of this Agreement in accordance with Section 6.1. Assuming the extent expressly permitted by accuracy of the representations and warranties of Buyer and Merger Sub in Section 6.1(b)4.6, have not been rescinded, modified or withdrawn in any way. The the execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws bylaws of the Company or of the charter, by-lawsbylaws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result inin any material liability of the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.. 9
(d) The Assuming the accuracy of the representations and warranties of Buyer and Merger Sub in Section 4.6, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company Cross has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Interpore Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted Stock Option Agreements and to consummate the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to Interpore Stockholder Agreement and the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayStock Option Agreements. The execution and delivery of this Agreement, the Interpore Stockholder Agreement and the Stock Option Agreements and the consummation of the Merger and the other transactions contemplated by this Agreement, the Interpore Stockholder Agreement and the Stock Option Agreements by the Company Cross have been duly authorized by all necessary corporate action on the part of the CompanyCross, subject only to the required receipt approval and adoption of this Agreement and the Company Stockholder ApprovalMerger by Cross's stockholders under the DGCL. This Agreement, the Interpore Stockholder Agreement has and the Stock Option Agreements have been duly executed and delivered by the Company Cross and constitutes constitute the valid and binding obligation obligations of the CompanyCross, enforceable in accordance with its their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”").
(b) The execution and delivery of this Agreement, the Interpore Stockholder Agreement and the Stock Option Agreements by the Company do Cross does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, the Interpore Stockholder Agreement shall and the Stock Option Agreements will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws Bylaws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s Cross or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.Subsidiaries,
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to receipt of the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement, including the Merger. Without limiting the generality of the foregoing, the The board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors has (i) determined that deemed the Merger and this Agreement are fair to advisable and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted in accordance with the DGCL upon the terms and subject to the stockholders of the Company for their adoption conditions set forth herein and approval and resolved to recommend that the stockholders of the Company vote in favor of (iii) recommended the adoption of this Agreement and by the approval stockholders of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayCompany. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall Agreement, including the Merger, will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or Byby-laws of the Company or of the charter, by-laws, or other organizational document Organizational Document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, modification, amendment, cancellation or acceleration of any obligation or loss of any material benefitbenefit or to increased, additional, accelerated or guaranteed rights or entitlements of any Person) under, require a notice, consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Liens on the Company’s or any of its Subsidiary’s Subsidiaries’ assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundMaterial Contract, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iviii) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law (including HIPAA, any foreign equivalent thereof or any other applicable privacy law), ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, modifications, amendments, cancellations, accelerations accelerations, losses, rights, entitlements, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would not reasonably be expected to result inbe material to the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole.
(c) No action by, consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, including the Merger, except for (i) the pre-merger notification requirements under the HSR Act and applicable foreign Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission. documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other actions, consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of be material to the Company Voting Proposal by the holders of at least and its Subsidiaries, taken as a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreementwhole.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “"Company Voting Proposal”") by the Company’s 's stockholders under the DGCL (the “"Company Stockholder Approval”"), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “"Company Board”"), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”").
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“"Liens”), ") on the Company’s 's or any of its Subsidiary’s 's assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation obligation, written or oral, to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundbound (a "Contract"), or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result inhave, a Company Material Adverse EffectEffect or prevent or materially delay consummation of the Merger. Section 3.4(b)(ii) of the Company Disclosure Schedule sets forth a list of all consents or waivers required to be obtained under the Company Material Contracts in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federalcommission or other governmental or regulatory authority, state, county agency or localinstrumentality (a "Governmental Entity"), or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the premerger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other U.S. states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable U.S. state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market laws and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings as may be required under applicable U.S. state or local laws which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse EffectEffect or prevent or materially delay consummation of the Merger.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s 's stockholders (the “"Company Meeting”") to consider the Company Voting Proposal (the “"Required Company Stockholder Vote”") is the only vote of the holders of any class or series of the Company’s 's capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Netegrity Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, to perform its obligations hereunder and, subject only to the adoption approval of this Agreement and the Merger by the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock (with the Class A Common Stock and Class B Common Stock voting together as a single class for such purposes) (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Shareholder Approval”), to consummate the Merger and the other transactions contemplated by this AgreementMerger. Without limiting the generality of the foregoing, the board of directors of the Company (the “The Company Board”), at a meeting duly called and held, by the unanimous vote of all directors has unanimously (i) determined that this Agreement and the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, Company; (ii) adopted this Agreement; (iii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, Merger; (iiiiv) directed that this Agreement and the Merger be submitted to the stockholders of the Company Company’s shareholders for their adoption approval; and approval and (v) resolved to recommend that the stockholders of the Company vote in favor of the adoption approval of this Agreement and the approval of Merger by the Merger, and Company’s shareholders (iv) to the extent necessary, adopted resolutions having the effect of causing the “Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(bBoard Recommendation”), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Parent and Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and (subject to receipt of the Company Shareholder Approval) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.any
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which a premerger notification report by the Company is qualified as a foreign corporation to transact businessunder the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”), and the expiration or termination of any applicable waiting period with respect thereto; (ii) the filing of the Proxy Statement Articles of Merger with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act Secretary of 1934, as amended (the “Exchange Act”), State; (iii) the filing with the SEC of (A) a proxy statement in preliminary and definitive form (each as amended or supplemented from time to time, the “Proxy Statement”) with respect to the Company Meeting, and (B) such reports, schedules or materials reports under Section 13 13(a) of or Rule 14a-12 under the Exchange Act, and such other compliance with the Exchange Act and the rules and regulations thereunder, as may be required in connection with this Agreement and the transactions contemplated hereby, Transactions; (iv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by or “blue sky” Laws or the rules and regulations of The Nasdaq Stock Market NASDAQ; and (viv) any such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, would not reasonably be expected to result in have a Company Material Adverse EffectEffect and would not reasonably be expected to prevent, or materially impair or delay, the ability of the Company to consummate the Merger.
(d) The affirmative vote for adoption Assuming the accuracy of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the CompanyParent’s stockholders (the “Company Meeting”) to consider and Merger Sub’s representation and warranty set forth in Section 3.4(d), the Company Voting Proposal (the “Required Company Stockholder Vote”) Shareholder Approval is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, Company Common Stock necessary for the adoption approval of this Agreement and the Merger or for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.Merger. 2.5
Appears in 1 contract
Samples: Merger Agreement (Hni Corp)
Authority; No Conflict; Required Filings and Consents. (ai) The Company has all requisite corporate power and authority to enter into this AgreementAgreement and any Stockholder Related Agreement to which it is a party, perform its obligations hereunder and, subject only to the adoption of under this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company and any Stockholder Approval”), Related Agreement to which it is a party and to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting Agreement and any Stockholder Related Agreement to which it is a party, subject to the generality approval and adoption of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in by the best interests Required Company Stockholder Vote; (ii) the affirmative vote of (A) the holders of at least a majority of the Company Common Shares and its stockholders, (iiB) approved the holders of more than sixty percent (60%) of the Company Preferred Shares (the “Required Company Stockholder Vote”) is the only vote of the holders of the Company Shares necessary to approve or adopt the Merger and or this Agreement or consummate the Merger; and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement the execution, delivery and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption performance of this Agreement and the approval of the Merger, and (iv) any Stockholder Related Agreement to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement it is a party and the consummation of the Merger and the other transactions contemplated by this Agreement and any Stockholder Related Agreement to which it is a party by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to and no other corporate action or proceeding on the required receipt part of the Company or its board of directors is necessary to authorize the execution, delivery or performance of this Agreement, any Stockholder ApprovalRelated Agreement to which it is a party or the consummation of the Merger or any of the other transactions contemplated by this Agreement or any such Stockholder Related Agreement; provided, however that the Merger is subject to the approval and adoption of the Merger and this Agreement by the Required Company Stockholder Vote. This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of except as such enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and or other similar laws affecting or relating to or affecting creditors’ rights generally generally, and general (ii) the availability of injunctive relief and other equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)remedies.
(b) The execution Assuming (i) the receipt of approval and delivery adoption of this Agreement by the Required Company do notStockholder Vote and (ii) the receipt or making of the consents, waivers, approvals, orders, authorizations, registrations, declarations and filings specified in Section 2.4(c) of the consummation Disclosure Schedule, neither the execution, delivery or performance by the Company of this Agreement or any of the Stockholder Related Agreements, nor the consummation of the Merger and or any of the other transactions contemplated by this Agreement shall notor any of the Stockholder Related Agreements, will directly or indirectly (iwith or without notice or lapse of time, or both): (A) contravene, conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyOrganizational Document, (iiB) contravene, conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of modification, termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require notice to any Person or a consent or waiver underwaiver, constitute a change in control under, require the payment of a fee or penalty under or result in the creation or imposition of any mortgage, security interest, pledge, lien, charge Lien upon or encumbrance of with respect to any nature, whether arising asset owned or used by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets Company under, any of the terms, conditions or provisions of any noteMaterial Contracts, bond(C) contravene, mortgageconflict with or violate, indentureor give any Person the right to challenge any of the transactions contemplated by this Agreement or any of the Stockholder Related Agreements or to exercise any remedy or obtain any relief under, leaseany Law or any order, licensewrit, contract injunction, judgment or other agreement, instrument or obligation decree to which the Company or any of its Subsidiaries assets is a party or by which any of them or any of their properties or assets may be boundsubject, or (iiiD) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c)contravene, conflict with or violate result in a violation of any permitof the terms or requirements of, concessionor give any Governmental Body the right to revoke, franchisewithdraw, licensesuspend, judgmentcancel, injunctionterminate or modify, order, decree, statute, law, ordinance, rule or regulation applicable to any Governmental Authorization that is held by the Company or that otherwise relates to the business of the Company or to any of its Subsidiaries the assets owned, used or any of its or their properties or assetscontrolled by the Company other than, except in the case of clauses (iiB), (C) and (iii) of this Section 3.4(b) D), above, for any such contraventions, conflicts, violations, breaches, defaults, terminations, cancellations, accelerations violations or losses that, individually or in the aggregate, have not had, and rights that would not reasonably be expected material to result in, a Company Material Adverse Effectthe Company.
(c) No consent, approval, license, permit, order or authorization ofGovernmental Authorization, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Body is required by or with respect to the Company or any of its Subsidiaries Company: (i) in connection with the execution and delivery of this Agreement or any of the Stockholder Related Agreements by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing Agreement or any of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessStockholder Related Agreements, or (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for Company to operate its business immediately after the Closing in the same manner as operated immediately prior to the Closing after giving effect to the consummation by the Company of the Merger and the other transactions contemplated by this AgreementAgreement and the Stockholder Related Agreements, except in each case for (A) the filing of the Charter Amendment and the Certificate of Merger with the Secretary of State of the State of Delaware, and (B) any filings required by applicable securities Laws.
(d) The Company is not now, nor has it ever been, required to file any periodic or other reports, or any registration statement, with any applicable securities regulatory authority, including the United States Securities and Exchange Commission (the “SEC”), pursuant to any securities legislation, regulations or rules or policies promulgated thereunder, including the Securities Act and the rules and regulations promulgated thereunder, or the Securities Exchange Act of 1934 (the “Exchange Act”), as amended, and the rules and regulations promulgated thereunder.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement and the approval of the Merger (the “"Company Voting Proposal”") by the Company’s 's stockholders under the DGCL (the “"Company Stockholder Approval”"), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by based on the unanimous vote recommendation of all directors the Special Committee, duly (i) determined unanimously that the Merger and this Agreement are is fair from a financial point of view to and in the best interests stockholders of the Company and its stockholdersCompany, (ii) unanimously approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) unanimously directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and unanimously resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, Merger and (iv) to the extent necessary, unanimously adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law or similar law (including Section 203 of the DGCL) that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this AgreementAgreement (collectively, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b"Board Recommendation"), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws Bylaws of the Company or of the charter, by-lawsbylaws, or other organizational document of any Subsidiary of the Company, Company or (ii) conflict withexcept as set forth in Section 3.3(b) of the Company Disclosure Schedule, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s 's or any of its Subsidiary’s 's assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse EffectContract.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including agency or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, a “"Governmental Entity”") is required by or with respect to the Company or any Subsidiary of its Subsidiaries it in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the Secretaries of appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, hereby and (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Stockholders' Meeting is the only vote of the holders of any class or series of the Company’s 's capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Switchboard Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement and the approval of the Merger (the “"Company Voting Proposal”") by the Company’s 's stockholders under the DGCL and as set forth in Section 3.3(d) (the “"Company Stockholder Approval”"), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “"Company Board”"), at a meeting duly called and held, by the unanimous vote of all directors held (i) unanimously approved this Agreement, (ii) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (iiiii) declared the advisability of, approved the Merger and adopted this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iiiiv) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (ivv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law (including Section 203 of the DGCL) or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms. Other than the Company Stockholder Approval, subject to no other approvals, consents, waivers or other conditions are required for the effects consummation of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)the transactions contemplated hereby.
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s 's or any of its Subsidiary’s 's assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, (iii) cause the Company or any Subsidiary to become liable for the payment of any recordation or stock transfer Tax, or (iiiiv) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c3.3(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b3.3(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect. Section 3.3(b) of the Company Disclosure Schedule lists all material consents, waivers and approvals under any of the Company's or any of its Subsidiaries' agreements, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including agency or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, a “"Governmental Entity”") is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Joint Proxy Statement Statement/Prospectus with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 165 and Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, laws and (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would notbe reasonably likely, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by (i) the holders of at least a majority of the outstanding shares of Company Common Stock capital stock (on the record date for date) at the meeting Company Stockholders Meeting, and (ii) 66 2/3% of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is shares of outstanding Series A Preferred Stock are the only vote votes of the holders of any class or series of the Company’s 's capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Clinical Data Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and each of the agreements and documents contemplated hereby to the adoption of this Agreement which Company is a party (the “"Company Voting Proposal”Ancillary Agreements") by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), and to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayAncillary Agreements. The execution and delivery of this Agreement and the Company Ancillary Agreements and the consummation of the Merger and the other transactions contemplated by this Agreement and the Company Ancillary Agreements by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only Company other than with respect to the required receipt Merger: the approval and adoption of this Agreement and the Merger by the affirmative vote of a majority of the voting power of the then outstanding shares of Company Stockholder ApprovalCommon Stock, and the filing of the Certificate of Merger with the Secretary of State of Delaware as required by the DGCL. This Agreement has been and each of the Company Ancillary -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER Agreements has been or will be duly executed and delivered by Company and (assuming the due execution and delivery of such agreements by the other parties thereto) constitutes or, with respect to the Company and Ancillary Agreements, constitutes or will constitute, the valid and binding obligation obligations of the Company, enforceable in accordance with its their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”"). The Board of Directors of Company has not taken any action to accelerate any options granted under the Company Stock Plans or Warrants and has approved the treatment of the Options and Warrants set forth in Section 1.5 of this Agreement. Company has delivered or concurrently with the execution of this Agreement is delivering any required notice under the Warrants to the holders thereof.
(b) The execution and delivery of this Agreement by and each of the Company do Ancillary Agreements by Company does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall and the Company Ancillary Agreements will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws Bylaws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified except as provided in clauses (i), (ii), (iii) through and (iv) of Section 3.4(c)in paragraph (c) below, conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, cancellations or accelerations or losses thatwhich are not, individually or in the aggregate, reasonably likely to have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice declaration or filing with with, any United States domestic or foreign foreign, federal, state, county or localmunicipal government, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commissionbureau, self-regulatory organization commission or other similar type body obtaining authority therefrom, or created pursuant to any law, (including without limitation, Environmental Laws, as defined in Section 3.12) or any stock market court or stock exchange on which shares of Company Common Stock are listed for tradingarbitration body ("Governmental Entity"), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreementhereby and thereby, except for (i) the filing of the pre-merger notification report under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, ("HSR Act"), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”)State, (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations laws of The Nasdaq Stock Market any foreign country and (viiv) such other consents, approvals, licenses, permits, orders, -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite necessary corporate power and authority to enter into execute and deliver this Agreement, and to perform its obligations hereunder andhereunder, subject only and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayhereby. The execution and delivery of this Agreement by the Company, the performance by the Company of its obligation hereunder, and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company of the transactions contemplated hereunder, have been duly and validly authorized by all necessary corporate action on the part of the Company, subject only to and no other corporate proceeding on the required receipt part of the Company Stockholder Approvalis necessary to authorize this Agreement or the performance by the Company of its obligation hereunder or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and the Purchaser, constitutes the a legal, valid and binding obligation of the Company, Company enforceable against the Company in accordance with its terms, subject to . The Board of Directors of the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in Company has adopted a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)resolution approving the transactions contemplated by this Agreement.
(b) The execution, delivery and performance of this Agreement by the Company do not, and shall not, (i) conflict with or violate any provision of the Company Articles or any equivalent organizational documents of any Company Subsidiary, (ii) assuming that all filings and notifications described in SECTION 4.03(c) have been made, conflict with or violate any Law or Governmental Order applicable to the Company or any Company Subsidiary or by which any property or asset of the Company or any Company Subsidiary is bound or affected, or (iii) conflict with, or result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation of, or result in any payment becoming payable by the Company or any Company Subsidiary to any third party, or result in the creation of any Encumbrance (other than Permitted Encumbrances) on any material property or asset of the Company or any Company Subsidiary pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation, except, with respect to clauses (ii) and (iii) of this SECTION 4.03(b), for any such conflicts, violations, breaches, defaults or other occurrences that would not have a Company Material Adverse Effect, and that could not reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement.
(c) Except as set forth in SECTION 4.03(c) of the DISCLOSURE SCHEDULE, the execution and delivery of this Agreement and the Escrow Agreement by the Sellers and execution and delivery of this Agreement by the Company do not, and the consummation performance of this Agreement and the Escrow Agreement by the Company of the Merger Sellers and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery performance of this Agreement by the Company shall not, require or the consummation by the Company of the Merger and the make desirable any material consent, approval, authorization or other transactions contemplated by this Agreementorder of, action by, filing with, or notification to, any third party or Governmental Authority, except for (i) Investment Canada Act Approval, provided that the filing Company makes no representation or warranty with respect to the pre-merger notification requirements of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, Competition Act (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”Canada), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange HSR Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse EffectFT Act Approval.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the affirmative vote for approval and adoption of this Agreement (the “Company Voting Proposal”) by the holders of a majority in voting power of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider adoption of this Agreement under the DGCL (the “Company Stockholder Approval”), to perform its obligations and consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, (i) the board of directors of the Company (the “Company Board”), Special Committee at a meeting duly called and held, by the unanimous vote of all directors unanimously (iA) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (iiB) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, and (iiiC) directed that this Agreement be submitted to the Company Board for their approval and recommendation that the stockholders of the Company vote in favor of the adoption of this Agreement, and (ii) the Company Board, upon the recommendation of the Special Committee, at a meeting duly called and held, (A) determined that the Merger is fair and in the best interests of the Company and its stockholders, (B) approved this Agreement and declared its advisability in accordance with the provisions of the DGCL, and (C) directed that this Agreement be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter Documents or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyCharter Documents, (ii) except as set forth in Section 3.4(b)(ii) of the Company Disclosure Schedule conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation cancellation, modification or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty or increased liabilities or fees or the loss of a benefit under or result in the imposition of any mortgage, right of first refusal, claim, lease, license, limitation in voting rights, security interest, pledge, lien, restriction, encroachment, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s Subsidiaries’ assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material lease, license, contract contract, subcontract, binding understanding, franchise, indenture, note, option, insurance policy, benefit plan or other binding agreement, instrument or obligation obligation, written or oral (each, a “Contract”), to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, except for any such conflicts, violations, breaches, defaults, terminations, cancellations, modifications, accelerations, losses, penalties, increased fees, liabilities, losses of material benefit, Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivvii) of Section 3.4(c), conflict with or violate in any material respect any permit, concession, franchise, license, judgment, injunction, order, writ, decree, statute, law, ordinance, rule rule, determination, award or regulation of or promulgated by, or settlement subject to any Governmental Entity (“Order”) and applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No material consent, approval, Action, license, permitOrder, order certification, franchise or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county state or local, U.S. or any supranational foreign court, arbitrational tribunal, administrative agency or non-U.S., government, political subdivision, governmental, legislative, commission or other governmental or regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and the notification or approval under the foreign antitrust or merger control laws listed in Section 3.4(c)(i) of the Company Disclosure Schedule, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessbusiness in order to continue such qualification, (iiiii) the filing of the Proxy Statement (as defined herein) with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the applicable requirements of state securities or “blue sky” laws, (v) any filings required under the rules and regulations of The NASDAQ National Market, (vi) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 or otherwise under the Exchange Act Act, as may be required in connection with this Agreement and the transactions contemplated hereby, (ivvii) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, ordersOrders, authorizations, registrations, declarations, notices and filings whichlisted in Section 3.4(c)(vii) of the Company Disclosure Schedule, if not obtained and (viii) such notices, consents, approvals or made, filings that the failure to make or obtain would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Approval is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the approval and adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, Contracts, debentures, warrants, options, series of capital stock, notes or other Indebtedness of the Company or its Subsidiaries having the right to vote (“Voting Debt”) (or convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company or its Subsidiaries may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has possesses full legal right and all requisite corporate limited liability company power and authority necessary to enter into execute and deliver this Agreement, the Transaction Documents (to the extent a party thereto), and any and all instruments necessary or appropriate in order to perform its obligations hereunder and, subject only and thereunder and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated hereby and thereby. The execution, delivery, and performance by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption Subsidiaries of this Agreement and the approval of the Merger, and other Transaction Documents (iv) to the extent necessary, adopted resolutions having each is a party thereto) has been duly and validly authorized by all necessary limited liability company (or equivalent) action and no other action (limited liability company or otherwise) on the effect part of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreementof its Subsidiaries is necessary to authorize the execution, in each case which resolutionsdelivery, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder ApprovalTransaction Documents. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation each Transaction Document to which the Company or any of its Subsidiaries is a party has been duly and validly executed and delivered by the Company or its applicable Subsidiary, and constitutes, or upon its execution and delivery will constitute, a valid and legally binding obligation of the Company and its Subsidiaries, as applicable, each enforceable against the Company and its Subsidiaries, as applicable, in accordance with its terms, except in each case as may be limited by applicable bankruptcy, insolvency, or similar Laws affecting creditors’ rights generally or by general principles of equity.
(b) The execution, delivery, and performance by the Company and its Subsidiaries of this Agreement and the other Transaction Documents to which any of them the Company or any of their properties or assets may be boundits Subsidiaries is a party, or (iii) subject to obtaining and the consummation by the Company Stockholder Approval and compliance with its Subsidiaries of the requirements specified in clauses transactions contemplated hereby and thereby, do not and will not (i) through (iv) of Section 3.4(c), conflict with or violate the Organizational Documents of the Company or any permitof its Subsidiaries, concession(ii) violate any Law applicable to the Company, franchiseany of its Subsidiaries, licenseor their respective assets or properties, judgmentor give any Government Entity or other Person the right to revoke, injunctionwithdraw, ordersuspend, decreelimit, statutecancel, lawterminate, ordinanceor modify any consents, rule permits, licenses, registrations or regulation applicable approvals granted to the Company or any of its Subsidiaries or any of its or their properties or assetsSubsidiaries, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for require the consent of, notice to, or other action by, any such conflictsPerson under, violationsconflict with, breachesresult in a violation or breach of, defaultsconstitute a default under, terminations, cancellations, accelerations or losses that, individually or result in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order acceleration or authorization termination of, or registration, declaration, notice result in the creation of any Lien upon any property or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares assets of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with pursuant to, any Contract, except to the execution and delivery extent that the occurrence of this Agreement by the Company or the consummation by the Company any of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if foregoing items would not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Lifecore Biomedical, Inc. \De\)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into execute and deliver this AgreementAgreement and the other agreements, instruments and documents contemplated by the terms of this Agreement to be executed and delivered by the Company and to perform its obligations hereunder and thereunder. The execution and delivery by the Company of this Agreement and the other agreements, instruments and documents contemplated by the terms of this Agreement to be executed and delivered by the Company and, subject only to obtaining the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate which is the only approval required from the Company Stockholders in connection with the Merger and the other transactions contemplated by this Agreement, the performance by the Company of this Agreement and the other agreements, instruments and documents contemplated by the terms of this Agreement to be executed and delivered by the Company and (subject to obtaining the Company Stockholder Approval) the consummation by the Company of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate and other action on the part of the Company and the Company Stockholders. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”)Company, at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger. This Agreement and all other agreements, instruments and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions documents contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery terms of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly be executed and delivered by the Company have been or will be as of the Closing Date duly and validly executed and delivered by the Company and, assuming this Agreement constitutes the legal, valid and binding obligation of Buyer and the Transitory Subsidiary, constitutes or will constitute a valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to the effects of except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other or similar laws Laws now or hereafter in effect relating to or affecting creditors’ rights generally and subject to general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)of equity.
(b) The Subject to the filing of the Certificate of Merger as required by the DGCL and to the filing requirements of the HSR Act and applicable foreign Antitrust Laws, neither the execution and delivery by the Company of this Agreement or any other agreement, instrument or document contemplated by the terms of this Agreement to be executed and delivered by the Company, nor the performance by the Company do notof its obligations hereunder or thereunder, and nor the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall nothereby or thereby, will (i) conflict with, with or result in any violation or breach of, violate any provision of the Certificate Organizational Documents of Incorporation the Company, each as amended or By-laws restated to date, or the Organizational Documents of any Subsidiary, each as amended or restated to date, (ii) require on the part of the Company or of the charter, by-lawsany Subsidiary any notice to or registration or filing with, or other organizational document of any Subsidiary of the Companypermit, authorization, consent or approval of, any Governmental Entity, (iiiii) conflict with, or result in any violation or a breach of, or constitute (with or without due notice or lapse of time, time or both) a default (or give rise to a right of terminationunder, cancellation or result in the acceleration of any obligation or loss of any material benefit) obligations under, create in any party the right to accelerate, terminate, modify or cancel, or require a any notice, consent or waiver under, constitute a change in control underany (A) any Material Contract, require the payment of a penalty under or result in the imposition of (B) any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation Contract to which the Company or any of its Subsidiaries Subsidiary is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any Subsidiary is bound or to which any of its Subsidiaries the assets of the Company or any of its or their properties or assetsSubsidiary are subject except, except in the case of clauses this clause (ii) and (iii) of this Section 3.4(b) B), for any such conflicts, violations, breaches, defaults, accelerations, terminations, modifications, cancellations, accelerations or losses Liens and violations that, individually or in the aggregate, have not had, resulted in and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
, (div) The affirmative vote for adoption result in the imposition of any Lien upon any assets of the Company Voting Proposal by or any Subsidiary, (v) violate any order, writ, injunction, decree, statute, rule or regulation applicable to the holders Company or any Subsidiary or any of at least a majority their respective properties or assets, except in the case of the outstanding shares foregoing clauses (ii), (iv) and (v) for such notices, registrations, filings, permits, authorizations, approvals, consents and waivers that, if not obtained or made, and such conflicts, breaches, defaults, accelerations, terminations, modifications, cancellations, Liens and violations that, individually or in the aggregate, have not resulted in and would not reasonably be expected to result in any material Liability or the loss of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) any material right or material benefit with respect to consider the Company Voting Proposal or any Subsidiary, or (the “Required Company Stockholder Vote”vi) is the only vote of the holders of trigger under any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by Contract to which the Company or any Subsidiary is a party or by which any of their respective assets are bound any third party right of first offer, right of first refusal, right of veto or right of participation, including in connection with the Merger and or the other transactions contemplated hereby (excluding, for purposes of this clause (vi) only and for the avoidance of doubt, the rights of the Company Stockholders to approve this Agreement and the Merger pursuant to this Agreement in accordance with the DGCL and the Company’s Organizational Documents and the rights of the Company Equityholders, holders of Company Warrants and holders of Indebtedness to receive the payments contemplated by this Agreement) except for such right that has been satisfied or that has been waived by such third party as of the date of this Agreement or that would not otherwise limit the Company’s ability to consummate the Merger without resulting in a breach or default or any other obligation or loss of rights or benefits under such Contract.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption approval of this Agreement the principal terms of the Merger (the “Company Voting Proposal”) by the Company’s stockholders shareholders under the DGCL CGCL (the “Company Stockholder Shareholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholdersshareholders, (ii) approved the Merger and this Agreement and declared their advisability approved the Agreement of Merger in accordance with the provisions of the DGCLCGCL, (iii) directed that this Agreement and the principal terms of the Merger be submitted to the stockholders shareholders of the Company for their adoption and approval and resolved to recommend that the stockholders shareholders of the Company vote in favor of the adoption approval of this Agreement and the approval principal terms of the Merger, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation or By-laws of the Company or of the charter, by-laws, memorandum or articles of association or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundMaterial Contract (as defined in Section 3.10 hereof), or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c3.3(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b3.3(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would may not reasonably be expected to result in, have a Company Material Adverse Effect. Section 3.3(b) of the Company Disclosure Schedule lists all material consents, waivers and approvals under any Company Material Contract required to be obtained in connection with the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including agency or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and compliance with other applicable Antitrust Laws, (ii) the filing of the Certificate Agreement of Merger with the Delaware California Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Joint Proxy Statement Statement/Prospectus with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 165 and Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations securities laws of The Nasdaq Stock Market any foreign country and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would notcould not reasonably be expected, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Shareholders Meeting is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption approval of this Agreement the principal terms of the Merger and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption approval of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL MBCA (the “Company Stockholder Approval”), to perform its obligations under and consummate the Merger and the other transactions contemplated by this AgreementTransactions. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”)Special Committee, at a meeting duly called and held, by the unanimous vote of with all directors members present voting in favor, (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCLMBCA, and (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption approval of this Agreement and the Agreement. The Special Committee’s approval of the MergerMerger also satisfies the provisions of Section 302A.673 of the MBCA. Each of the Company, the Company’s Board of Directors and the Special Committee has taken all actions necessary to ensure that no “fair price”, “moratorium”, “control share acquisition” or other similar anti-takeover statute or regulation enacted under state or federal laws in the United States (ivincluding Sections 302A.671 and 302A.673 of the MBCA) applicable to the extent necessary, adopted resolutions having the effect of causing the Company not to shall be subject to any state takeover law or similar law that might otherwise apply applicable to this Agreement, the Merger or any the other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayTransactions. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement Transactions by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Buyer and the Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution execution, delivery and delivery performance of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall Transactions will not, (i) conflict withwith or violate any provision of the Company Charter Documents or the Subsidiary Charter Documents, (ii) result in any breach or violation of or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, require consent or result in a material loss of a material benefit under, give rise to any right or obligation under, give to others any right of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any violation property or breach of, any provision of the Certificate of Incorporation or By-laws asset of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Companypursuant to, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, contract (written or oral), agreement, lease, license, contract permit, franchise or other agreementbinding material commitment, instrument or obligation obligation, including all exhibits, schedules and amendments thereto (each, a “Contract”) to which the Company or any of its Subsidiaries Subsidiary is a party or by which any of them the Company or a Subsidiary or any property or asset of their properties the Company or assets may be boundany Subsidiary is bound or affected, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c3.3(c), conflict with or violate in any permit, concession, franchise, license, judgment, injunction, order, decree, material respect any statute, law, ordinance, rule regulation, permit, rule, code, executive order, judgment, injunction, decree or regulation other order (“Law”) applicable to the Company or any Subsidiary or by which any property or asset of its Subsidiaries the Company or any of its Subsidiary is bound or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effectaffected.
(c) No consent, approval, license, permit, order or authorization of, or registrationfiling with, declaration, notice or filing with any United States or foreign federal, state, county local or localforeign court, administrative agency or any supranational commission or non-U.S., government, political subdivision, governmental, legislative, other governmental or regulatory agency (a “Governmental Entity”) or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required to be obtained or made, as the case may be, by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this AgreementTransactions, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and applicable foreign Antitrust Laws, (ii) the filing of the Certificate Articles of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessMinnesota, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (SEC under the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated herebyTransactions, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (vvi) such filings as may be required by the rules and regulations of The Nasdaq Stock Market Company Stockholder Approval, and (vivii) such other those consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in set forth on Section 3.3(c) of the aggregate, reasonably be expected to result in a Company Material Adverse EffectDisclosure Schedule.
(d) The affirmative vote for adoption approval of the Company Voting Proposal by the holders of at least a majority in voting power of the outstanding shares of Company Common Stock (the “Required Company Stockholder Vote”) on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder VoteMeeting”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the approval and adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this AgreementTransactions.
Appears in 1 contract
Samples: Merger Agreement (Zomax Inc /Mn/)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the approval and adoption of this Agreement (the “Company Voting Proposal”"COMPANY VOTING PROPOSAL") by the Company’s stockholders under holders of a majority of the DGCL outstanding shares of Series A Common Stock and a majority of the outstanding shares of Series B Common Stock (the “Company Stockholder Approval”"COMPANY SHAREHOLDER APPROVAL"), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutionscase, except after under the date hereof FBCA, to consummate the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayMerger. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have has been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by Buyer and the Merger Subsidiary, constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects effect of any applicable bankruptcy, reorganization, insolvency, fraudulent conveyancemoratorium, reorganization, moratorium and other or similar laws relating affecting creditor's rights generally, and subject, as to or affecting creditors’ rights generally and enforceability, to the effect of general equitable principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”law).
(b) The execution and delivery of this Agreement by the Company do does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation or By-laws Bylaws of the Company or of the charter, by-laws, bylaws or other organizational document of any Subsidiary of the CompanySignificant Subsidiary, (ii) except as set forth on SCHEDULE 3.03(B)(II), conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, (iii) except as set forth in SCHEDULE 3.03(B)(III), require a consent or waiver under, constitute a change in control under, require the payment of a penalty under (which payment shall also be set forth in such schedule) or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s 's or any of its Significant Subsidiary’s 's assets under, in each of the cases of clauses (ii) and (iii), any of the terms, conditions or provisions of any material note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries Significant Subsidiary is a party or by which any of them or any of their properties or assets may be bound, or (iiiiv) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (iSection 3.03(c) through (iv) of Section 3.4(cand SCHEDULE 3.03(C), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation Laws applicable to the Company or any of its Subsidiaries Significant Subsidiary or any of its or their properties or assets, except except, in the case cases of clauses (ii), (iii) and (iiiiv) of this Section 3.4(b) for above, any such conflicts, violations, breaches, defaults, terminationsrights of termination, cancellationsrights of cancellation or rights of acceleration, accelerations failures to obtain consents or losses waivers, changes of control, penalties or Liens that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, have a Company Material Adverse Effect.
(c) No Except as set forth on SCHEDULE 3.03(C), no consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitration tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization board agency or instrumentality, in each case whether foreign or domestic (including any stock market or stock exchange on which shares of Company Common Stock are listed for tradingeach a "GOVERNMENTAL ENTITY"), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its the Significant Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this AgreementMerger, except for (i) the filing of the Certificate Articles of Merger with the Delaware Secretary of State, State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessFlorida, (ii) the filing of the Proxy Statement (as defined below) with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under of the Exchange Act Act, as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) the pre-merger notification requirements of the HSR Act, (vi) the notification and other requirements of the Exon-Florio Amendment to the Defense Protection Act of 1950, (vii) the FOCI xxxxxication and mitigation requirements of Chapter two of the Department of Defense National Security Program Operating Manual (NISPOM), promulgated pursuant to Executive Order 12829, and pursuant to Department of Energy Order DOE O 470.1 regarding safeguards and security, (viii) the expiration of any applicable waiting periods or receipt of clearances, or approvals or consents, as applicable, by the competition authorities in each of Denmark, Germany and Austria (the "REQUIRED COMPETITION APPROVALS") (to be obtained from anti-trust or competition authorities in each such jurisdiction in terms as are necessary to allow the Merger to lawfully proceed in such jurisdiction, and to ensure that the Merger will not be substantially prohibited or materially altered pursuant to the anti-trust or competition laws of such jurisdiction), (ix) consents of the Department of Transportation or the Federal Aviation Administration to effect the transfer of the Company's and its Significant Subsidiaries' commercial operating certificates (the "FAA CONSENTS"), (x) approvals and notifications of the Federal Communications Commission ("FCC") in connection with the transfer of control of the Company, the Significant Subsidiaries or the Subsidiaries in their respective capacities as radio license licensees (the "FCC APPROVALS"); (xi) all other filings as required or otherwise provided for under foreign anti-trust or other competition laws or foreign investment laws; (xii) all consents and approvals of the Victorian Department of Justice in relation to the Fulham Correctional Centre Contract (including, without limitation, the approvals under clauses 70.3 and 82.3) that may be required by under such contract in relation to entering into this Agreement and consummating the rules and regulations of The Nasdaq Stock Market Merger; and (vixiii) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Wackenhut Corp)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement and the approval of the Merger (the “"Company Voting Proposal”") by the Company’s 's stockholders under the DGCL (the “"Company Stockholder Approval”"), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “"Company Board”"), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and adopted this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s 's assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them it or any of their its properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c3.3(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b3.3(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect. Section 3.3(b) of the Company Disclosure Schedule lists all material consents, waivers and approvals under any of the Company's agreements, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including agency or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, a “"Governmental Entity”") is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Joint Proxy Statement Statement/Prospectus with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act and materials under Rule 165 and Rule 425 under the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, hereby and (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations securities laws of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effectany foreign country.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Stockholders Meeting is the only vote of the holders of any class or series of the Company’s 's capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt approval of this Agreement and the Company Stockholder ApprovalMerger by the Company's stockholders under the DGCL. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”"). On or prior to the date hereof, the Board of Directors of the Company has unanimously adopted resolutions that have (i) approved and declared advisable this Agreement and the Merger, (ii) directed that this Agreement and the Merger be submitted to the Company's stockholders for adoption at a meeting of such stockholders and (iii) recommended that the stockholders of the Company adopt this Agreement and the Merger (with respect to subclause (iii), the "Company Recommendation"), and such resolutions, as of the date of this Agreement, have not been subsequently rescinded, modified or withdrawn in any way. The Company stockholder vote required for the adoption of this Agreement and the Merger shall be a majority of the shares of Company Common Stock outstanding on the record date for the Company Stockholders' Meeting (the "Company Stockholder Approval").
(b) The execution and delivery of this Agreement by the Company do does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall hereby will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or Byby-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict withexcept as set forth in the Company Disclosure Letter, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation, give rise to any obligation to make an offer to purchase any debt instrument or give rise to any loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule Law or regulation ordinance applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, cancellations or accelerations or losses thatwhich are not, individually or in the aggregate, reasonably likely to have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice declaration or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal administrative agency or judicial commission or arbitral body other governmental authority or instrumentality (each, a “"Governmental Entity”") is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreementhereby, except for (i) the filing of the pre-merger notification report under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended ("HSR Xxx"), (xx) xxx filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessState, (iiiii) the filing of the Joint Proxy Statement with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities lawsLaws and the Laws of any foreign country and the European Union, and (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement and the approval of the Merger (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and adopted this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, Merger and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state anti-takeover statute, law or similar law regulation (including, without limitation, a “fair price,” “moratorium,” or “control share acquisition” statute) that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The Except as set forth in Section 3.3(b) of the Company Disclosure Schedule, the execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or Byby-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, bound or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c)3.3(c) below, conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b3.3(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not could constitute or could reasonably be expected to result in, constitute a Company Material Adverse Effect. Except as set forth in Section 3.3(b) of the Company Disclosure Schedule, the execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the transactions contemplated by this Agreement shall not, conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any Lien on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any Key Contract. Section 3.3(b) of the Company Disclosure Schedule lists all consents, waivers and approvals under any of the Company’s or any of its Subsidiaries’ agreements, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including agency or instrumentality or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body trading (each, each a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any applicable foreign notification laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State of the State of Delaware and appropriate corresponding documents with the Secretaries of appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or 13, Rule 14a-12 or other relevant sections under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, hereby and (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations securities laws of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effectany foreign country.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Stockholders Meeting is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. Section 3.2(d) of the Company Disclosure Schedule lists all bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) unanimously determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their its advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the MergerAgreement, and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company execution, delivery or performance of this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement not to be subject to any state takeover law Law or similar law Law that might otherwise apply to this Agreementsuch execution, delivery, performance or consummation. Assuming the accuracy of the representations and warranties of Buyer and Acquisition Sub in Section 4.7, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws bylaws of the Company or of the charter, by-lawsbylaws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s Subsidiaries’ assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, lawLaw, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the United States Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities lawsLaws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if the absence of which would not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
(d) The Assuming the accuracy of the representations and warranties of Buyer and Acquisition Sub in Section 4.5, the affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption approval of this Agreement (the “"Company Voting Proposal”") by the Company’s 's stockholders under the DGCL MBCA (the “"Company Stockholder Approval”"), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “"Company Board”"), at a meeting duly called and held, by the unanimous vote of all its directors (i) determined that the Merger and this Agreement are fair to and is in the best interests of the Company and its stockholdersCompany, (ii) approved the Merger and adopted this Agreement and declared their advisability in accordance with the provisions of the DGCLMBCA, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Mergerapproval, and (iv) to the extent necessary, adopted resolutions a vote having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”").
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation Organization or Byby-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation cancellation, modification or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any naturekind, whether other than any of such arising by contract from (A) mechanic's, materialmen's, workmen's, repairmen's, warehousemen's, landlord's, carrier's and similar liens, (B) liens for Taxes and installments of special assessments arising in the Ordinary Course of Business for amounts not yet due and payable or by operation delinquent or the validity of law which are being contested in good faith subject to appropriate reserves for contested Taxes or assessments in accordance with GAAP, (“C) other liens which do not interfere in any material respect with the use or value of an asset, or (D) liens set forth in Section 3.4(b) of the Company Disclosure Schedule (collectively "Liens”), ") on the Company’s 's or any of its Subsidiary’s 's assets under, any of the terms, conditions or provisions of any noteCompany Material Contracts, bondCompany Leases, mortgage, indenture, material lease, license, contract or other agreement, instrument or obligation with respect to Company Intellectual Property to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundparty, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through and (ivii) of Section 3.4(c), conflict with or violate any material permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, tribunal, arbitrator or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, arbitral body, instrumentality, department, office administrative agency, commission, self-department, board, bureau or other governmental or regulatory organization authority, agency or instrumentality (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “"Governmental Entity”") is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre merger notification requirements under the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended (the "XXX Xxx"), (xx) the filing of the Certificate Articles of Merger with the Delaware Massachusetts Secretary of State the Commonwealth and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities business and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Bright Horizons Family Solutions Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into into, execute and deliver this Agreement and each Ancillary Agreement to which it is a party and, subject, in the case of this Agreement, perform its obligations hereunder and, subject only to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to perform its obligations hereunder and thereunder and to consummate the Merger and the other transactions contemplated by this AgreementAgreement and the Ancillary Agreements to which it is a party. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved this Agreement, the Merger performance of the Company of its covenants and this Agreement obligations hereunder, and declared their its advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend recommended that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval Agreement, (iv) approved each of the MergerAncillary Agreements to which the Company is a party, and (ivv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case Agreement or any Ancillary -8- Agreement to which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayCompany is a party. The execution and delivery of this Agreement and the Ancillary Agreements to which the Company is a party, the performance of the Company of its covenants and obligations hereunder and thereunder, and the consummation of the Merger and the other transactions contemplated by this Agreement and such Ancillary Agreements by the Company have been duly authorized by all necessary corporate action on the part of the Company, with the consummation of such transactions contemplated by this Agreement subject only to the required receipt of the Company Stockholder Approval. This Agreement has and each Ancillary Agreement to which the Company is a party have been duly executed and delivered by the Company and constitutes constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with its and their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement and the Ancillary Agreements to which the Company is a party by the Company do not, and the performance by the Company of its obligations hereunder and under such Ancillary Agreements and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement and the Ancillary Agreements to which the Company is a party shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, modification, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge charge, encumbrance, option to purchase, lease or encumbrance of otherwise acquire any nature, whether arising by contract interest or by operation of law security interest (“LiensLien”), ) on the Company’s or any of its Subsidiary’s properties, rights or assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties properties, rights or assets may be bound, or (iii) subject subject, in the case of this Agreement, to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties respective properties, rights or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, modifications, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery by the Company of this Agreement or any Ancillary Agreement to which the Company is a party, the performance by the Company of its obligations hereunder or thereunder or the consummation by the Company of the Merger and the other transactions contemplated by this AgreementAgreement or such Ancillary Agreements, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable foreign antitrust law, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement filings required under, and compliance with the requirements of, the Securities Act and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, and (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt -9- securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Airvana Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and the Ancillary Agreements to which the Company is or will be a party and, subject only to receipt of the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreementhereby and thereby, including the Merger. Without limiting the generality of the foregoing, the The board of directors of the Company has (the “Company Board”), at a meeting duly called and held, by and at which all of the unanimous vote directors of all directors the Company were present) duly and unanimously adopted resolutions (i) determined that deeming the Merger and this Agreement are fair to advisable and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that approving this Agreement and the Merger be submitted in accordance with the DGCL and CCC upon the terms and subject to the stockholders of the Company for their adoption conditions set forth herein and approval and resolved to recommend that the stockholders of the Company vote in favor of (iii) recommending the adoption of this Agreement and by the approval stockholders of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayCompany. The execution and delivery of this Agreement and the Ancillary Agreements to which the Company is or will be a party and the consummation of the Merger and the other transactions contemplated by this Agreement hereby and thereby by the Company have been duly authorized by all necessary corporate action on the part board of directors of the Company, Company and subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed , no further corporate or stockholder authorization will be required to authorize the execution, delivery and delivered performance by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and such Ancillary Agreements and the consummation by the Company of the Merger transactions contemplated hereby and thereby. This Agreement and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of Ancillary Agreements to which the Company is or of will be a party have been or, when executed, will be duly and validly executed and delivered by the charterCompany and constitute or will constitute (as applicable) the valid and binding obligation, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which enforceable against the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with their terms, subject to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement Bankruptcy and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse EffectEquity Exception.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Illumina Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement and the approval of the Merger (the “"Company Voting Proposal”") by the Company’s 's stockholders under the DGCL (the “"Company Stockholder Approval”"), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “"Company Board”"), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and adopted this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, Merger and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company not to be subject to any state takeover law (including Section 203 of the DGCL) or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to Stockholder's Agreement or the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayVoting Agreements. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Significant Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s 's or any of its Subsidiary’s 's assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c3.3(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b3.3(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses thatas would not, individually or in the aggregate, have not had, and would not reasonably be expected to result in, in a Company Material Adverse Effect. To the Company's knowledge, Section 3.3(b) of the Company Disclosure Schedule lists all consents, waivers and approvals under any of Company's or any of its Subsidiaries' material agreements, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal arbitration tribunal, administrative agency or judicial commission or arbitral body other governmental or regulatory authority, agency or instrumentality, foreign or domestic (each, a “"Governmental Entity”") is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and any consents, approvals and filings required under applicable foreign antitrust laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities Secretaries of State of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Joint Proxy Statement Statement/Prospectus (as defined in Section 3.4(c)) with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 (or other applicable rule) of the Exchange Act and materials under Rule 165 and Rule 425 (or other applicable rules) of the Securities Act of 1933, as amended (the "Securities Act") and the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market laws and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal this Agreement by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Meeting is the only vote of the holders of any class or series of the Company’s 's capital stock or other securities, whether debt securities or equity securities, of the Company necessary for the adoption of to adopt this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into execute and deliver this AgreementAgreement and, subject to the approval of this Agreement by the Company’s shareholders under the VBCA (the “Company Shareholder Approval”), to perform its obligations hereunder and, subject only and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors unanimously (i) determined that the Merger and adopted this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCLVBCA, and (iiiii) directed that this Agreement and the Merger be submitted to the stockholders shareholders of the Company for their adoption and approval and resolved to recommend that the stockholders shareholders of the Company vote in favor of the adoption approval of this Agreement and (the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the “Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(bBoard Recommendation”), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by each of the Buyer and the Transitory Subsidiary, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement and compliance by the Company with the terms and provisions hereof shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation Company Charter Documents or By-laws any of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyDocuments, (ii) materially conflict with, or result in any material violation or breach of, or constitute (with or without notice or lapse of time, or both) a material default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s respective properties, Intellectual Property or other assets under, any of the terms, conditions or provisions of any loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, lease, license, contract or other agreement, instrument or obligation obligation, written or oral, to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundbound (each, a “Contract”) that is listed in Section 3.11(b) of the Company Disclosure Letter, or any Company Permit, or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), materially conflict with or violate in any material respect any permit, concession, franchise, license, judgment, injunction, writ, order, decree, statute, lawLaw, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and applicable foreign antitrust or trade regulation laws, (ii) the filing of the Certificate Articles of Merger with the Delaware Secretary of State of the State of Vermont and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained obtained, made or madegiven, would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect.
. As used in this Agreement, “Governmental Entity” means any United States, non-United States or multi-national government entity, body or authority, including (di) The affirmative vote for adoption any United States federal, state or local government (including any town, village, municipality, district or other similar governmental or administrative jurisdiction or subdivision thereof, whether incorporated or unincorporated), (ii) any non-United States or multi-national government or governmental authority or any political subdivision thereof, (iii) any United States, non-United States or multi-national regulatory or administrative entity, authority, instrumentality, jurisdiction, agency, body or commission, exercising, or entitled or purporting to exercise, any judicial, legislative, police, regulatory, or taxing authority or power, including any court, tribunal, commission or arbitrator, (iv) any self-regulatory organization, or (v) any official of any of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreementforegoing.
Appears in 1 contract
Samples: Merger Agreement (Idx Systems Corp)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into execute and deliver this AgreementAgreement and the other agreements, instruments and documents contemplated hereby to which it is or will be a party and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by the Company of this Agreement and the other agreements, instruments and documents contemplated hereby to which it is or will be a party and, subject to obtaining the Company Stockholder Approval, which is the only to approval required from the adoption Company Stockholders, the performance by the Company of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other agreements, instruments and documents contemplated hereby to which it is a party or will be a party and the consummation by the Company of the transactions contemplated hereby and thereby have been duly and validly authorized by this Agreementall necessary corporate and other action on the part of the Company and the Company Stockholders. Without limiting the generality of the foregoing, the board of directors except as set forth on Section 3.4(a) of the Company (Disclosure Schedule, the “Board of Directors of the Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company, the Company Stockholders and its stockholdersthose materially affected by the Company’s conduct, and promotes the Public Benefit Purpose, (ii) approved the Merger execution and delivery of this Agreement by the Company, the performance by the Company of its covenants and declared their advisability other obligations hereunder, and the consummation of the Merger upon the terms and subject to the conditions set forth herein, (iii) resolved to recommend that the Company Stockholders adopt this Agreement in accordance with the provisions of the DGCL, DGCL and (iiiiv) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger. This Agreement and all other agreements, instruments and (iv) documents contemplated hereby to the extent necessary, adopted resolutions having the effect of causing which the Company not to is a party have been, or will be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The upon execution and delivery of this Agreement thereof, duly and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly validly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery of such agreement, instrument or document by the other parties thereto, constitutes the or will, upon execution and delivery thereof, constitute a valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to the effects of except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other or similar laws Laws now or hereafter in effect relating to or affecting creditors’ rights generally and subject to general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”)of equity.
(b) The execution execution, delivery and delivery performance of this Agreement Agreement, and the other agreements, instruments and documents contemplated hereby to which it is or will be a party, by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary bylaws of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (under, or give rise to a right of termination, modification, amendment, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control underwith or without the giving of notice, require the payment lapse of a penalty under time or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets underboth, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract Material Contract or other agreement, instrument or obligation to which material Permits of the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundSubsidiaries, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through and (ivii) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, lawLaw, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assetsassets or (iv) result in the creation of imposition of any Lien on any of the properties or assets of the Company or any of its Subsidiaries, except in the case of clauses (ii), (iii) and (iiiiv) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, modifications, amendments, cancellations, accelerations or losses losses, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance by the Company of this Agreement by or any of the Company other agreements, instruments and documents contemplated hereby to which it is or will be a party or the consummation by the Company and the Subsidiaries of the Merger and the other transactions contemplated by this Agreementhereby and thereby, except for (i) the pre-merger notification requirements under the HSR Act, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities business and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, are not reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Victoria's Secret & Co.)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only to assuming the adoption accuracy of this Agreement (the “Company Voting Proposal”) by representations and warranties of the Company’s stockholders under Parent and the DGCL (Merger Sub in Section 4.8 and receipt of the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this AgreementMerger. Without limiting the generality of the foregoing, the board of directors of the Company (the “The Company Board”), at a meeting duly called and held, by the unanimous vote of all directors directors, duly adopted resolutions (i) determined determining and declaring that the Merger and this Agreement are fair to and it is in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of enter into this Agreement and consummate the approval of Merger on the Merger, terms and (iv) subject to the extent necessaryconditions set forth herein, adopted resolutions having (ii) approving and declaring the effect advisability of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any and the other transactions contemplated by this Agreement, in each case which resolutions, except after (iii) declaring that the date hereof terms of the Merger are fair to the extent expressly permitted by Company and the Company’s stockholders and (iv) directing that this Agreement be submitted to the Company’s stockholders at the Company Stockholders Meeting for their adoption and recommending that the stockholders of the Company adopt this Agreement (the “Company Board Recommendation”). Assuming the accuracy of the representations and warranties of the Parent and the Merger Sub in Section 6.1(b)4.8 and receipt of the Company Stockholder Approval, have not been rescinded, modified or withdrawn in any way. The the execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Parent and the Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”). Assuming the accuracy of the representations and warranties of Parent and Merger Sub in Section 4.8, the affirmative vote of the holders of a majority of the voting power of the outstanding shares of Company Common Stock entitled to vote on the Merger is the only vote of the holders of any class or series of Company capital stock that is necessary pursuant to applicable law, the certificate of incorporation of the Company or bylaws of the Company to adopt this Agreement and consummate the Merger.
(b) The execution and delivery of this Agreement by the Company do not, and (assuming the accuracy of the representations and warranties of the Parent and the Merger Sub in Section 4.8 and receipt of the Company Stockholder Approval) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary bylaws of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundMaterial Contract, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the HSR Act and any requirements under other applicable Antitrust Laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such other reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market Nasdaq, and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, are not reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption There are no bonds, debentures, notes or other indebtedness of the Company Voting Proposal by having the holders of at least a majority right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreementmay vote.
Appears in 1 contract
Samples: Merger Agreement (Endurance International Group Holdings, Inc.)
Authority; No Conflict; Required Filings and Consents. (a) The Company Each of the Buyer and the Transitory Subsidiary has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company Buyer (the “Company "Buyer Board”"), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company Buyer and its stockholders, stockholders and (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) Buyer Voting Proposal to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayBuyer's stockholders. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company Buyer and the Transitory Subsidiary have been duly authorized by all necessary corporate action on the part of each of the CompanyBuyer and the Transitory Subsidiary (including the approval of the Merger by the Buyer in its capacity as the sole stockholder of the Transitory Subsidiary), subject only to the required receipt approval of the Company Stockholder ApprovalBuyer Voting Proposal (as defined in Section 6.5(b)) by the stockholders of the Buyer. This Agreement has been duly executed and delivered by each of the Company Buyer and the Transitory Subsidiary and constitutes the valid and binding obligation of each of the CompanyBuyer and the Transitory Subsidiary, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by each of the Company do Buyer and the Transitory Subsidiary does not, and the consummation by the Company Buyer and the Transitory Subsidiary of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Articles of Organization or By-laws of the Buyer or the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyTransitory Subsidiary, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.any
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company Buyer or any of its Subsidiaries the Transitory Subsidiary in connection with the execution and delivery of this Agreement by the Company Buyer of the Transitory Subsidiary or the consummation by the Company Buyer or the Transitory Subsidiary of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the HSR Act, and any consents, approvals and filings required under applicable foreign antitrust laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities Secretaries of State of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Registration Statement and Joint Proxy Statement Statement/Prospectus with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (and the “Exchange Act”), (iiiiv) the filing filings of such reports, reports or schedules or materials under Section 13 of or Rule 14a-12 under (or other applicable rules) of the Exchange Act and materials under Rule 165 and Rule 425 (or other applicable rules) of the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (vvi) such any consents, authorizations, approvals, filings as may be or exemptions required by the rules and regulations of The Nasdaq the New York Stock Market Exchange with respect to the shares of Buyer Common Stock issuable in connection with the Merger and (vivii) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Buyer Material Adverse Effect.
(d) . The affirmative vote for adoption the approval of the Company Voting Proposal issuance of shares of Buyer Common Stock to be issued in the Merger by the holders of at least a majority of the shares of Buyer Common Stock voted at the Buyer Stockholders Meeting at which a quorum of the holders of the outstanding shares of Company Buyer Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Buyer Stockholders Meeting is the only vote of the holders of any class or series of the Company’s Buyer's capital stock or other securities, whether debt securities or equity securities, of the Buyer necessary for the adoption of this Agreement and for to approve the consummation by the Company Buyer of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Perkinelmer Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption approval of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders shareholders under the DGCL MBCA as provided in Section 3.4(d) (the “Company Stockholder Shareholder Approval”), to perform its obligations and consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company or any duly appointed committee thereof (the “Company Board”), at a meeting duly called and heldhas, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company and its stockholdersshareholders, (ii) approved the Merger and adopted this Agreement and declared their its advisability in accordance with the provisions of the DGCLMBCA, and (iii) directed that this Agreement and the Merger be submitted to the stockholders shareholders of the Company for their adoption and approval and resolved to recommend that the stockholders shareholders of the Company vote in favor of the adoption approval of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution execution, delivery and delivery performance of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution execution, delivery and delivery performance of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation Organization or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, right of first refusal, claim, license, limitation in voting rights, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), ) on the Company’s or any of its Subsidiary’s Subsidiaries’ assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation obligation, written or oral, to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundbound (each, a “Contract”), or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would are not reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution execution, delivery and delivery performance of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and applicable foreign antitrust or trade regulation laws, (ii) the filing of the Certificate Articles of Merger with the Delaware Secretary of State of the Commonwealth of Massachusetts and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would notnot be, individually or in the aggregate, reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption approval of the Company Voting Proposal by the holders of at least a majority two-thirds of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders shareholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Shareholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption approval of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Kronos Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company Seller has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company Seller have been duly authorized by all necessary corporate action on the part of the CompanySeller, subject only to the required receipt approval of the Company Stockholder ApprovalMerger by Seller's stockholders under the DGCL. The affirmative vote of the holders of a majority of the shares of Seller Common Stock outstanding on the record date for the Seller Meeting is the only vote by Seller's stockholders required to approve the Merger. This Agreement has been duly executed and delivered by the Company Seller and constitutes the valid and binding obligation of the CompanySeller, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”").
(b) The Except as set forth on Schedule 3.03(b), the execution and delivery of this Agreement by the Company do Seller does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws Bylaws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanySeller, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or cancellation, acceleration of any obligation to put any securities back to Seller or any of its Subsidiaries or any other rights activated by any "change of control" or similar concept or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company Seller or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company Seller or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice declaration or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal administrative agency or judicial commission or arbitral body other governmental authority or instrumentality (each, a “"Governmental Entity”") is required by or with respect to the Company Seller or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreementhereby, except for (i) the filing of the pre-merger notification report under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, ("HSR Act"), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact businessState, (iiiii) the filing of the Joint Proxy Statement (as defined in Section 3.16 below) with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, laws and (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Seller Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Video City Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company Each of the Buyer and the Transitory Subsidiary has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and to the adoption of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company Buyer (the “Company "Buyer Board”"), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are is fair to and in the best interests of the Company Buyer and its stockholders, stockholders and (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) Buyer Voting Proposal to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayBuyer's stockholders. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company Buyer and the Transitory Subsidiary have been duly authorized by all necessary corporate action on the part of each of the CompanyBuyer and the Transitory Subsidiary (including the approval of the Merger by the Buyer in its capacity as the sole stockholder of the Transitory Subsidiary), subject only to the required receipt approval of the Company Stockholder ApprovalBuyer Voting Proposal (as defined in Section 6.5(b)) by the stockholders of the Buyer. This Agreement has been duly executed and delivered by each of the Company Buyer and the Transitory Subsidiary and constitutes the valid and binding obligation of each of the CompanyBuyer and the Transitory Subsidiary, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by each of the Company do Buyer and the Transitory Subsidiary does not, and the consummation by the Company Buyer and the Transitory Subsidiary of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Articles of Organization or By-laws of the Buyer or the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyTransitory Subsidiary, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s Buyer's or any of its the Transitory Subsidiary’s 's assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company Buyer or any of its Subsidiaries the Transitory Subsidiary is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c4.3(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company Buyer or any of its Subsidiaries the Transitory Subsidiary or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b4.3(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses thatas would not, individually or in the aggregate, have not had, and would not reasonably be expected to result in, in a Company Buyer Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) Entity is required by or with respect to the Company Buyer or any of its Subsidiaries the Transitory Subsidiary in connection with the execution and delivery of this Agreement by the Company Buyer of the Transitory Subsidiary or the consummation by the Company Buyer or the Transitory Subsidiary of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the HSR Act, and any consents, approvals and filings required under applicable foreign antitrust laws, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities Secretaries of State of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Registration Statement and Joint Proxy Statement Statement/Prospectus with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (and the “Exchange Act”), (iiiiv) the filing filings of such reports, reports or schedules or materials under Section 13 of or Rule 14a-12 under (or other applicable rules) of the Exchange Act and materials under Rule 165 and Rule 425 (or other applicable rules) of the Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (vvi) such any consents, authorizations, approvals, filings as may be or exemptions required by the rules and regulations of The Nasdaq the New York Stock Market Exchange with respect to the shares of Buyer Common Stock issuable in connection with the Merger and (vivii) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Buyer Material Adverse Effect.
(d) . The affirmative vote for adoption the approval of the Company Voting Proposal issuance of shares of Buyer Common Stock to be issued in the Merger by the holders of at least a majority of the shares of Buyer Common Stock voted at the Buyer Stockholders Meeting at which a quorum of the holders of the outstanding shares of Company Buyer Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Buyer Stockholders Meeting is the only vote of the holders of any class or series of the Company’s Buyer's capital stock or other securities, whether debt securities or equity securities, of the Buyer necessary for the adoption of this Agreement and for to approve the consummation by the Company Buyer of the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the approval and adoption of this Agreement and the Plan of Merger (the “"Company Voting Proposal”") by the Company’s stockholders 's shareholders under the DGCL VSCA (the “"Company Stockholder Shareholder Approval”"), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “"Company Board”"), at a meeting duly called and held, by the unanimous vote of all directors Directors (i) determined that the Merger, the Plan of Merger and this Agreement are fair to and in the best interests of the Company and its stockholdersshareholders, (ii) approved the Merger and adopted this Agreement and declared their advisability the Plan of Merger in accordance with the provisions of the DGCLVSCA, (iii) directed that this Agreement and the Plan of Merger be submitted to the stockholders shareholders of the Company for their adoption and approval and resolved to recommend that the stockholders shareholders of the Company vote in favor of the adoption and approval of this Agreement and the approval Plan of the Merger, Merger and (iv) to the extent necessary, adopted resolutions a resolution having the effect of causing the Company Company, the Buyer, the Transitory Subsidiary and any Affiliate of any of them not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or and any other transactions contemplated by this Agreement or the Shareholder's Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law)(the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate Articles of Incorporation or By-laws Bylaws of the Company or of the charter, by-laws, bylaws or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s 's or any of its Subsidiary’s 's assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, bound or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through ), (ii), (iii), (iv) and (v) of Section 3.4(c3.3(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b3.3(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations or losses thatwhich, individually or in the aggregate, have not had, and would are not reasonably likely to be expected material to result inthe Company and its Subsidiaries taken as a whole. Section 3.3(b) of the Company Disclosure Schedule lists all consents, a Company Material Adverse Effectwaivers and approvals under any of Company's or any of its Subsidiaries' material agreements, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal arbitrational tribunal, administrative agency or judicial commission or arbitral body other governmental or regulatory authority, agency or instrumentality, foreign or domestic (each, a “"Governmental Entity”) "), is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (ii) the filing of the Certificate Articles of Merger with the Delaware Secretary of State SCC and appropriate corresponding documents with the appropriate authorities Secretaries of State of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement Statement/Prospectus with the Securities and Exchange Commission (the “"SEC”") in accordance with the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under of the Exchange Act and materials under Rule 165 and Rule 425 of the Securities Act of 1933, as amended (the "Securities Act"), as may be required in connection with this Agreement and the transactions contemplated herebyhereby and thereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market laws and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would notnot be reasonably likely, individually or in the aggregate, reasonably to be expected material to result in the Company and its Subsidiaries taken as a Company Material Adverse Effectwhole.
(d) The affirmative vote for approval and adoption of this Agreement and the Company Voting Proposal Plan of Merger by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) Shareholders Meeting is the only vote of the holders of any class or series of the Company’s 's capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of to approve and adopt this Agreement and the Plan of Merger and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement. There are no holders of bonds, debentures, notes or other indebtedness of the Company having the right to vote (nor holders of bonds, debentures, notes or other indebtedness of the Company convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Keane Inc)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, to perform its obligations hereunder and, subject only to the adoption approval of this Agreement (the “Company Voting Proposal”) by the Company’s stockholders shareholders under the DGCL MBCA (the “Company Stockholder Shareholder Approval”), to consummate the Merger and the other transactions contemplated by this AgreementMerger. Without limiting the generality of the foregoing, the board of directors of the Company (the “The Company Board”), at a meeting duly called and held, by the unanimous vote of all directors has unanimously (i) determined that this Agreement and the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, Company; (ii) adopted this Agreement; (iii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, Merger; (iiiiv) directed that this Agreement and the Merger be submitted to the stockholders of the Company Company’s shareholders for their adoption approval; and approval and (v) resolved to recommend that the stockholders of the Company vote in favor of the adoption approval of this Agreement by the Company’s shareholders. Assuming the accuracy of the representations and warranties of the Parent and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this AgreementMerger Sub in Section 4.8, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any way. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Parent and the Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and (assuming the accuracy of the representations and warranties of the Parent and the Merger Sub in Section 4.8 and subject to receipt of the Company Shareholder Approval) the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate articles of Incorporation organization or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary bylaws of the Company, (ii) conflict with, or result in any violation or breach of, any provision of the articles of organization or bylaws (or comparable organizational documents) of any Significant Subsidiary of the Company, (iii) conflict with, or result in any violation or breach of, or constitute (a default with or without notice or the lapse of time, or both) a default both (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result (or, with or without notice or lapse of time, or both, would result) in the creation or imposition of any mortgageLien on any asset, security interest, pledge, lien, charge property or encumbrance right of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s Company or any of its Subsidiary’s assets Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundMaterial Contract, or (iiiiv) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified in clauses (i) through (ivv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties respective properties, rights or assets, except in the case of clauses (ii), (iii) and (iiiiv) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, had and would not be reasonably be expected likely to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States Governmental Entity or foreign federal, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the pre-merger notification requirements under the HSR Act, and any other applicable Antitrust Laws, (ii) the filing of the Certificate Articles of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (iiiii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) SEC in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iiiiv) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ivv) such consents, approvals, orders, authorizations, registrations, declarations declarations, notices and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market Nasdaq, and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, would not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption Assuming the accuracy of the Parent’s and the Merger Sub’s representation and warranty set forth in Section 4.8 and the approval of the Company Voting Proposal by the holders of at least a majority two-thirds of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) entitled to consider the Company Voting Proposal vote thereon (the “Required Company Stockholder Shareholder Vote”) is the only consent or vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, is necessary for the adoption approval of this Agreement and or for the consummation by the Company of the Merger and Merger. There are no bonds, debentures, notes or other indebtedness of the other transactions contemplated by this AgreementCompany having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote.
Appears in 1 contract
Samples: Merger Agreement (Analogic Corp)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption approval of this Agreement following the proposal of such matter in the Proxy Statement (as defined below) (the “Company Voting Proposal”) by the Company’s stockholders shareholders under the DGCL (the “Company Stockholder Shareholder Approval”), to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board Board of directors Directors of the Company or any duly appointed committee thereof (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors has (i) determined that the Merger and this Agreement are Asset Sale is fair to and in the best interests of the Company and its stockholdersshareholders, (ii) approved the Merger and adopted this Agreement and declared their its advisability in accordance with the provisions of the DGCL, and (iii) directed that this Agreement and the Merger be submitted to the stockholders shareholders of the Company for their adoption and approval and resolved to recommend that the stockholders shareholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof subject to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayBoard’s rights pursuant to this Agreement. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only to the required receipt of the Company Stockholder Shareholder Approval. This Agreement has been duly executed and delivered by the Company and, assuming the due execution and delivery by the Parent and the Buyer, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall not, not (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, ; (ii) individually or in the aggregate conflict in any respect with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), Lien on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, Contract; or (iii) subject to obtaining the Company Stockholder Shareholder Approval and compliance with the requirements specified in clauses (i) through (ivvi) of Section 3.4(c3.5(c), conflict with or violate in any material respect any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their respective properties or assets, except in the case of clauses clause (ii) and (iii) of this Section 3.4(b3.5(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, accelerations accelerations, losses, penalties or losses Liens, and for any consents or waivers not obtained, that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with with, any United States court, arbitrational tribunal, administrative agency or foreign federal, state, county commission or local, other governmental or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization agency or instrumentality (including a “Governmental Entity”) or any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) trading is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act and the filing and effectiveness of 1934, the Registration Statements (as amended defined in Section 3.6(c) below); (the “Exchange Act”), (iiiii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 the Exchange Act and under the Exchange Securities Act as may be required in connection with this Agreement and the transactions contemplated hereby, ; (iviii) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, ; (viv) such the filings and notifications as may be required by under the rules and regulations of The Nasdaq Stock Market AMEX; (v) the filing with the Secretary of State of the State of Delaware of a Certificate of Amendment to the Certificate of Designations, Preferences and Rights of the Series A Preferred Stock; and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, not reasonably be expected to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption approval of the Company Voting Proposal by the holders of at least a (i) 75% of the outstanding shares of the Series A Preferred Stock, and (ii) the majority of the outstanding shares of both the Company Common Stock and the Series A Preferred Stock, voting as a single class, on the record date for the meeting of the Company’s stockholders shareholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Shareholder Vote”) is the only vote of the holders of any class classes or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption approval of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement; provided, that (v) the consent of the holders of (A) a majority of the outstanding principal amount of the Company Notes dated January 13, 2006, (B) a majority of the outstanding principal amount of the Company Notes dated January 22, 2007, and (C) 75% of the outstanding shares of Series A Preferred Stock is required for the Company to issue the Bridge Debt; (w) the consent of the holders of a majority of the outstanding principal amount of (A) the Company Notes dated January 13, 2006 and (B) the Company Notes dated January 22, 2007 is required to make such amendments to the agreements and other documents, and authorize such new documents, related to the Company Notes and the security interest in the Company’s assets granted in connection with the issuance of the Company Notes and the Bridge Debt as shall be necessary to release any and all Liens on the Acquired Assets prior to or at the Closing; (x) the consent of individual holders of Company Notes dated either January 13, 2006 or January 22, 2007 is required to ensure that the holders of such Company Notes will forgo delivery of default notices upon the Closing and thereby agree to the delay in the repayment of the Company Notes for up to ten (10) days after the effectiveness of the Resale Registration Statement; (y) the consent of the holders of at least 75% of the outstanding shares of Series A Preferred Stock shall be required to approve the filing of an amendment of the certificate of designations setting forth the terms and conditions of the Series A Preferred Stock to delay the payment of the liquidation preference owed on such shares for up to ten (10) days after the later to occur of the Closing and the effectiveness of the Resale Registration Statement; and (z) the consent of the holders of the Closing Company Warrants is required to terminate such warrants. There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote.
Appears in 1 contract
Authority; No Conflict; Required Filings and Consents. (a) The Company Target has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder Agreement and, subject only to the adoption of this Agreement (the “Company Target Voting Proposal”) by the CompanyTarget’s stockholders under the DGCL and the certificate of incorporation of Target (the “Company Target Stockholder Approval”), ) to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Target Board”), at a meeting duly called and heldmeeting at which all directors were present, by the a unanimous vote of all directors vote, or via unanimous written consent (i) determined that the Merger and this Agreement are is fair to to, and in the best interests of the Company of, Target and its stockholders, (ii) approved this Agreement, the Merger and the actions contemplated by this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that declared this Agreement advisable, and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved (iv) determined to recommend that the stockholders of the Company Target vote in favor of the adoption of to adopt this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, thereby approve the Merger or any and such other transactions actions as contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayhereby. The execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement by the Company Target have been duly authorized by all necessary corporate action on the part of the CompanyTarget, subject only to the required receipt of the Company Target Stockholder Approval. This Agreement has been duly executed and delivered by Target and, assuming the Company due execution and delivery of this Agreement by Company, constitutes the valid and binding obligation of the CompanyTarget, enforceable against such party in accordance with its terms, subject to the effects of applicable bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the the “Bankruptcy and Equity Exception”).
(b) The execution and delivery of this Agreement by the Company do Target does not, and the consummation by the Company Target of the Merger and the other transactions contemplated by this Agreement shall not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate certificate of Incorporation incorporation or By-laws bylaws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the CompanyTarget, (ii) conflict with, or result in any material violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law nature (“Liens”), ) on the Company’s or any of its SubsidiaryTarget’s assets under, (including Target Intellectual Property) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation Contract required to which be disclosed in Section 3.11(a) of the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be boundTarget Disclosure Schedules, or (iii) subject to obtaining the Company Target Stockholder Approval and compliance with the requirements specified in clauses (i) through (iv) of Section 3.4(c), conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, lawLaw, ordinance, rule or regulation applicable to the Company Target or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts), violations, breaches, defaults, terminations, cancellations, accelerations or losses thatas would not, individually or in the aggregate, have not had, and would not reasonably be expected to result in, in a Company Target Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice or filing with any United States or foreign federalwith, state, county or local, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commission, self-regulatory organization (including any stock market or stock exchange on which shares of Company Common Stock are listed for trading), or any court, tribunal arbitrational tribunal, administrative agency or judicial commission or arbitral body other governmental or regulatory authority, agency or instrumentality (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries Target in connection with the execution and delivery of this Agreement by the Company Target or the consummation by the Company Target of the Merger and the other transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company Target is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by the rules and regulations of The Nasdaq Stock Market and (vi) such other consents, approvals, licenses, permits, orders, authorizations, registrations, declarations, notices and filings which, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal Business Combination was approved by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the CompanyTarget’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreementshareholders.
Appears in 1 contract
Samples: Agreement and Plan of Business Combination (SPECTRAL CAPITAL Corp)
Authority; No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement, perform its obligations hereunder and, subject only Agreement and each of the agreements and documents contemplated hereby to the adoption of this Agreement which Company is a party (the “"Company Voting Proposal”Ancillary Agreements") by the Company’s stockholders under the DGCL (the “Company Stockholder Approval”), and to consummate the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the board of directors of the Company (the “Company Board”), at a meeting duly called and held, by the unanimous vote of all directors (i) determined that the Merger and this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved the Merger and this Agreement and declared their advisability in accordance with the provisions of the DGCL, (iii) directed that this Agreement and the Merger be submitted to the stockholders of the Company for their adoption and approval and resolved to recommend that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger, and (iv) to the extent necessary, adopted resolutions having the effect of causing the Company not to be subject to any state takeover law or similar law that might otherwise apply to this Agreement, the Merger or any other transactions contemplated by this Agreement, in each case which resolutions, except after the date hereof to the extent expressly permitted by Section 6.1(b), have not been rescinded, modified or withdrawn in any wayAncillary Agreements. The execution and delivery of this Agreement and the Company Ancillary Agreements and the consummation of the Merger and the other transactions contemplated by this Agreement and the Company Ancillary Agreements by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject only Company other than with respect to the required receipt Merger: the approval and adoption of this Agreement and the Merger by the affirmative vote of a majority of the voting power of the then outstanding shares of Company Stockholder ApprovalCommon Stock, and the filing of the Certificate of Merger with the Secretary of State of Delaware as required by the DGCL. This Agreement has been and each of the Company -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER 12 Ancillary Agreements has been or will be duly executed and delivered by Company and (assuming the due execution and delivery of such agreements by the other parties thereto) constitutes or, with respect to the Company and Ancillary Agreements, constitutes or will constitute, the valid and binding obligation obligations of the Company, enforceable in accordance with its their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ ' rights generally and to general equitable equity principles (whether considered in a proceeding in equity or at law)(the “the "Bankruptcy and Equity Exception”"). The Board of Directors of Company has not taken any action to accelerate any options granted under the Company Stock Plans or Warrants and has approved the treatment of the Options and Warrants set forth in Section 1.5 of this Agreement. Company has delivered or concurrently with the execution of this Agreement is delivering any required notice under the Warrants to the holders thereof.
(b) The execution and delivery of this Agreement by and each of the Company do Ancillary Agreements by Company does not, and the consummation by the Company of the Merger and the other transactions contemplated by this Agreement shall and the Company Ancillary Agreements will not, (i) conflict with, or result in any violation or breach of, any provision of the Certificate of Incorporation or By-laws Bylaws of the Company or of the charter, by-laws, or other organizational document of any Subsidiary of the Company, (ii) conflict with, or result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, or require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any mortgage, security interest, pledge, lien, charge or encumbrance of any nature, whether arising by contract or by operation of law (“Liens”), on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract or other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets may be bound, or (iii) subject to obtaining the Company Stockholder Approval and compliance with the requirements specified except as provided in clauses (i), (ii), (iii) through and (iv) of Section 3.4(c)in paragraph (c) below, conflict with or violate any permit, concession, franchise, license, judgment, injunction, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of its or their properties or assets, except in the case of clauses (ii) and (iii) of this Section 3.4(b) for any such conflicts, violations, breaches, defaults, terminations, cancellations, cancellations or accelerations or losses thatwhich are not, individually or in the aggregate, reasonably likely to have not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or registration, declaration, notice declaration or filing with with, any United States domestic or foreign foreign, federal, state, county or localmunicipal government, or any supranational or non-U.S., government, political subdivision, governmental, legislative, regulatory or administrative authority, body, instrumentality, department, office agency, commissionbureau, self-regulatory organization commission or other similar type body obtaining authority therefrom, or created pursuant to any law, (including without limitation, Environmental Laws, as defined in Section 3.12) or any stock market court or stock exchange on which shares of Company Common Stock are listed for tradingarbitration body ("Governmental Entity"), or any court, tribunal or judicial or arbitral body (each, a “Governmental Entity”) is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger and the other transactions contemplated by this Agreementhereby and thereby, except for (i) the filing of the pre-merger notification report under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, ("HSR Act"), (ii) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate corresponding documents with the appropriate authorities of other states in which the Company is qualified as a foreign corporation to transact business, (ii) the filing of the Proxy Statement with the Securities and Exchange Commission (the “SEC”) in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”)State, (iii) the filing of such reports, schedules or materials under Section 13 of or Rule 14a-12 under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (iv) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable state securities laws, (v) such filings as may be required by laws and the rules and regulations laws of The Nasdaq Stock Market any foreign country and (viiv) such other consents, approvals, licenses, permits, orders, authorizations, registrationsfilings, declarations, notices approvals and filings registrations which, if not obtained or made, would not, individually or in the aggregate, not be reasonably be expected likely to result in have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting Proposal by the holders of at least a majority of the outstanding shares of Company Common Stock on the record date for the meeting of the Company’s stockholders (the “Company Meeting”) to consider the Company Voting Proposal (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock or other securities, whether debt securities or equity securities, necessary for the adoption of this Agreement and for the consummation by the Company of the Merger and the other transactions contemplated by this Agreement.. -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER 13
Appears in 1 contract
Samples: Merger Agreement (Lernout & Hauspie Speech Products Nv)
