Closing Deliveries and Conditions. (a) The Company shall deliver to Acquiror, at or prior to the Closing, each of the following: (i) the Company Stockholder Consent executed by each Company Stockholder listed on Exhibit B-2, or their proxyholder(s); (ii) a counterpart to the Escrow Agreement, in substantially the form attached hereto as Exhibit D, dated as of the Closing Date and executed by the Effective Time Holders’ Agent and Xxxxx Fargo Bank, N.A. (the “Escrow Agent”); (iii) FIRPTA documentation, comprised of (A) a notice to the Internal Revenue Service, in accordance with the requirements of Treasury Regulation Section 1.897-2(h)(2), in substantially the form attached hereto as Exhibit E, dated as of the Closing Date and executed by the Company, together with written authorization for Acquiror to deliver such notice form to the Internal Revenue Service on behalf of the Company after the Closing, and (B) a FIRPTA Notification Letter, in substantially the form attached hereto as Exhibit F, dated as of the Closing Date and executed by the Company; (iv) resignations from each of the directors and each of the officers of the Company and each Subsidiary in office immediately prior to the Closing; (v) a Certificate of Status from the Secretary of State of the State of Delaware, the Secretary of State of the State of California and each other State or other jurisdiction in which the Company is qualified to do business as a foreign corporation, dated within seven days prior to the Closing Date, and certifying that the Company is in good standing (to the extent such jurisdiction recognizes such concept) and, to the extent provided by such certificate and in such jurisdiction, that all applicable state franchise or similar Taxes and fees of the Company through and including the date of the certificate have been paid; (vi) the Company Net Working Capital Certificate; (vii) evidence satisfactory to Acquiror of the consent to assignment of any Person whose consent to assignment may be required in connection with the Merger or any other transaction contemplated by this Agreement under the Contracts listed or described on Schedule 1.4(a)(vii) hereto; (viii) the minute book of the Company; (ix) the Company Financial Statements; (x) a counterpart to the form of the Employment Agreements, executed by (A) each of the employees of the Company set forth on Schedule A to this Agreement (none of which shall have been revoked) and (B) not less than 75% of the employees of the Company offered employment by Acquiror prior to the date of this Agreement (a sufficient number of which shall not have been revoked to ensure that Acquiror has unrevoked Employment Agreements with not less than 75% of the employees of the Company offered employment by Acquiror); (xi) the Spreadsheet and a certificate executed by the Chief Executive Officer of the Company, dated as of the Closing Date, certifying that such Spreadsheet is true, correct and complete; (xii) a certificate, dated as of the Closing Date and executed on behalf of the Company by its Secretary, certifying (A) the Company’s certificate of incorporation, (B) the Company’s bylaws, (C) board resolutions of the Company approving the Merger and this Agreement and terminating the Company’s 401(k) plan prior to the Closing, and (D) stockholder consents adopting this Agreement, which consents shall represent approval by Company Stockholders holding not less than 85% of the outstanding Company Capital Stock (such stockholder consent threshold, the “Company Stockholder Approval”); (xiii) a Payoff Letter, duly executed by each Company Debtholder and a Bank Payoff Letter, in a form reasonably acceptable to Acquiror, duly executed by each holder of Bank Debt; (xiv) an invoice (each, a “Vendor Invoice”) from each Person to whom Transaction Expenses are owed, as set forth on the Spreadsheet, which shall state the amount owed to such Person and shall indicate that, upon payment of the stated amount, all outstanding obligations of the Company and the Subsidiaries to such Person shall be satisfied and paid in full; and (xv) the legal opinion of Xxxxxx LLP, counsel to the Company, in the form attached hereto as Exhibit G. (b) Acquiror shall deliver to the Company, at or prior to the Closing, (i) a counterpart to the Escrow Agreement, in substantially the form attached hereto as Exhibit D, dated as of the Closing Date and executed by Acquiror and the Escrow Agent; and (ii) a certificate, dated as of the Closing Date and executed on behalf of Acquiror by its Secretary, certifying that the board of directors of Acquiror has approved this Agreement and the transactions contemplated by this Agreement and the Ancillary Agreements. (c) In addition to receipt of the items set forth in Section 1.4(a)(i)-(a)(xv)(receipt of any one or more of which may be waived by Acquiror in writing), each of the following shall also be a condition to Acquiror and Merger Sub’s obligation to close (satisfaction of any one or more of which may be waived by Acquiror in writing): (i) since the date of the Merger Agreement, there shall not have been a Material Adverse Effect with respect to the Company; (ii) the Company’s representations herein shall be true and correct in all material respects as of the Agreement Date and as of the Closing Date (except as to representations made as of a specific date which shall be true as of such date) and Acquiror will have received a certificate dated as of the Closing Date to such effect executed on behalf of the Company by the Company’s Chief Executive Officer; (iii) the Company shall have performed its covenants herein in all material respects; (iv) no material litigation shall be pending or threatened against the Company, that will have the probable effect of enjoining or preventing the consummation of the Merger or any of the other transactions contemplated by this Agreement; (v) the Company shall have terminated the Non-Continuing Employees in accordance with Section 6.6; (vi) on or prior to the Closing Date, the Company shall have paid in full, or shall have caused a Subsidiary of the Company to pay in full, all accrued but unused vacation time and other paid-time-off previously owed to employees of the Company or any Subsidiary of the Company based in the United States, whether or not such employees are offered employment by Acquiror in connection with the Closing; and (vii) there shall not have been issued, enacted or adopted, or threatened in writing by any Governmental Entity, any order, decree, temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action or proceeding, or any judgment or ruling by any Governmental Entity that prohibits or renders illegal or imposes limitations on the Merger or any other material transaction contemplated by this Agreement. (d) Each of the following shall be a condition to the Company’s obligation to close (receipt of any one or more of which may be waived by the Company in writing): (i) Acquiror’s representations herein shall be true and correct in all material respects as of the Agreement Date and as of the Closing Date (except as to representations made as of a specific date, which shall be true as of such date and except for representations the breach of which would not affect or delay the Acquiror’s ability to consummate the Merger in accordance herewith) and the Company will have received a certificate dated as of the Closing Date to such effect executed on behalf of Acquiror by Acquiror’s Chief Executive Officer; (ii) Acquiror shall have performed its covenants herein in all material respects; (iii) no litigation or proceeding will be pending or threatened that will have the probable effect of enjoining or preventing the consummation of the Merger or any of the other transactions contemplated by this Agreement; and (iv) there shall not have been issued, enacted or adopted, or threatened in writing by any Governmental Entity, any order, decree, temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action or proceeding, or any judgment or ruling by any Governmental Entity that prohibits or renders illegal or imposes limitations on the Merger or any other material transaction contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Proofpoint Inc)
Closing Deliveries and Conditions. (a) The Company shall deliver to Acquiror, at or prior to the Closing, each of the following:
(i) the Company Stockholder Consent and a counterpart to the Stockholder Agreement, executed by each Company Stockholder listed on Exhibit B-2, or their proxyholder(s);
(ii) a counterpart to the Escrow Agreement, in substantially the form attached hereto as Exhibit D, dated as of the Closing Date and executed by the Effective Time Holders’ Agent and Xxxxx Fargo Bank, N.A. (the “Escrow Agent”);
(iii) FIRPTA documentation, comprised of (A) a notice to the Internal Revenue Service, in accordance with the requirements of Treasury Regulation Section 1.897-2(h)(2), in substantially the form attached hereto as Exhibit E, dated as of the Closing Date and executed by the Company, together with written authorization for Acquiror to deliver such notice form to the Internal Revenue Service on behalf of the Company after the Closing, and (B) a FIRPTA Notification Letter, in substantially the form attached hereto as Exhibit F, dated as of the Closing Date and executed by the Company;
(iv) evidence reasonably satisfactory to Acquiror of the resignations from each of the directors and each of the officers of the Company and each Subsidiary in office immediately prior to the Closing effective as of the Closing;
(v) a Certificate of Status from the Secretary of State of the State of Delaware, the Secretary of State of the State of California and each other State or other jurisdiction in which the Company is qualified to do business as a foreign corporation, dated within seven five (5) days prior to the Closing Date, and certifying that the Company is in good standing (to the extent such jurisdiction recognizes such concept) and, to the extent provided by such certificate and in such jurisdictioncertificate, that all applicable state franchise or similar Taxes and fees of the Company through and including the date of the certificate have been paid;
(vi) the Company Net Working Capital Certificate;
(vii) evidence reasonably satisfactory to Acquiror of the consent to assignment of any Person whose consent to assignment may be required in connection with the Merger or any other transaction contemplated by this Agreement under the Contracts listed or described on Schedule 1.4(a)(vii) heretothat no Company Warrants are outstanding;
(viii) the minute book of the Company;
(ix) the Company Financial Statements;
(x) a counterpart to the Acquiror’s form of employment agreement, proprietary information and invention assignment agreement and non-competition and non-solicitation agreement, consistent with the terms and conditions in the corresponding Employee Acknowledgment (collectively, an “Employment AgreementsAgreement”), executed by (A) each of the employees of the Company or any Subsidiary set forth on Schedule A 1 to this Agreement (none of which shall have been revoked) and (B) not less than 7590% of the other employees of the Company offered and the Subsidiaries to whom offers of employment by Acquiror prior to the date of this Agreement (a sufficient number of which shall not have been revoked to ensure that Acquiror has unrevoked Employment Agreements with not less than 75% of the employees of the Company offered employment made by Acquiror);
(xix) the Spreadsheet and a certificate executed by the Chief Executive Officer of the Company, dated as of the Closing Date, certifying that such Spreadsheet is true, correct and complete;
(xiixi) a certificate, dated as of the Closing Date and executed on behalf of the Company by its Secretary, certifying the Company’s (A) the Company’s certificate of incorporation, (B) the Company’s bylaws, (C) board resolutions of the Company approving the Merger and this Agreement and terminating the Company’s 401(k) plan and the Company Option Plans prior to the Closing, and (D) stockholder consents adopting this Agreement, which consents shall represent approval by the Minimum Company Stockholders holding not less Stockholder Approval;
(xii) evidence reasonably satisfactory to Acquiror that no more than 8515% of the outstanding Company Capital Stock (such stockholder consent threshold, that is issued and outstanding immediately prior to the “Company Stockholder Approval”)Effective Time are Dissenting Shares or are eligible to make a demand for appraisal under Delaware Law;
(xiii) a Payoff LetterParachute Payment Waiver, duly executed by (“Parachute Payment Waiver”), from each Person who the Company Debtholder reasonably believes is, with respect to the Company, a “disqualified individual” (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations promulgated thereunder), as determined immediately prior to the initiation of the requisite stockholder approval procedure under, and who (x) either is, or is employed by, a Bank Payoff LetterUnited States income taxpayer, and (y) might otherwise have, receive or have the right or entitlement to receive a parachute payment under Section 280G of the Code (each, a “Disqualified Individual”), pursuant to which each such Person shall agree to waive any and all right or entitlement to the accelerated vesting, payments, benefits, options and stock to the extent the value thereof exceeds 2.99 times such Person’s base amount determined in a form reasonably acceptable to Acquiroraccordance with Section 280G of the Code and the regulations promulgated thereunder, duly executed by each holder unless the requisite stockholder approval of Bank Debtsuch accelerated vesting, payments, benefits, options and stock is obtained;
(xiv) an invoice (each, evidence reasonably satisfactory to Acquiror that the Company shall have submitted for Company Stockholder approval in a manner which satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder for any payment or economic benefit that would otherwise constitute a “Vendor Invoice”parachute payment” (as defined in Section 280G(b)(2)(A) from each Person to whom Transaction Expenses are owed, as set forth on the Spreadsheet, which shall state the amount owed to such Person and shall indicate that, upon payment of the stated amountCode) with respect to any Disqualified Individual, all outstanding obligations of the Company and the Subsidiaries to which such Person shall be satisfied and paid in fullindividual waives his or her rights pursuant to a Parachute Payment Waiver; and
(xv) evidence reasonably satisfactory to Acquiror that the legal opinion of Xxxxxx LLP, counsel Transaction Bonus Amount will be paid by the Company or its Subsidiaries to the Company, in Transaction Bonus Recipients immediately following the form attached hereto as Exhibit G.Closing.
(b) Acquiror shall deliver to the Company, at or prior to the Closing, (i) a counterpart to the Escrow Agreement, in substantially the form attached hereto as Exhibit D, dated as of the Closing Date and executed by Acquiror and the Escrow Agent; and (ii) a certificate, dated as of the Closing Date and executed on behalf of Acquiror by its Secretary, certifying that the board of directors of Acquiror has approved this Agreement and the transactions contemplated by this Agreement and the Ancillary Agreements.
(c) In addition to receipt of the items set forth in Section 1.4(a)(i)-(a)(xv)(receipt 1.4(a)(i), (ii), (iv), (v), (vi), (ix), (x), (xi), (xii), (xiii) and (xiv) (receipt of any one or more of which may be waived by Acquiror in writing), each of the following shall also be a condition to Acquiror and Merger Sub’s obligation to close (satisfaction of any one or more of which may be waived by Acquiror in writing): (i) since the date of the Merger Agreement, there shall not have been a Material Adverse Effect with respect to the Company; (ii) the Company’s representations herein shall be true and correct in all material respects as of the Agreement Date and as of the Closing Date (except as to representations made as of a specific date which shall be true as of such date) and Acquiror will have received a certificate dated as of the Closing Date to such effect executed on behalf of the Company by the Company’s Chief Executive Officer; (iii) the Company shall have performed its covenants herein in all material respects; (iv) no material litigation shall be pending or threatened against the Company, that will have the probable effect of proceeding enjoining or preventing the consummation of the Merger or any of the other transactions contemplated by this Agreement; (v) the Company Agreement shall have terminated the Non-Continuing Employees be in accordance with Section 6.6; (vi) on or prior to the Closing Date, the Company shall have paid in full, or shall have caused a Subsidiary of the Company to pay in full, all accrued but unused vacation time and other paid-time-off previously owed to employees of the Company or any Subsidiary of the Company based in the United States, whether or not such employees are offered employment by Acquiror in connection with the Closingeffect; and (viiv) there shall not have been issued, enacted or adopted, or threatened in writing by any Governmental Entity, any order, decree, temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action or proceeding, or any judgment or ruling by any Governmental Entity that prohibits or renders illegal or imposes limitations on the Merger or any other material transaction contemplated by this Agreement.
(c) Acquiror shall deliver to the Company, at or prior to the Closing, a counterpart to the Escrow Agreement, in substantially the form attached hereto as Exhibit D, dated as of the Closing Date and executed by Acquiror and the Escrow Agent.
(d) Each In addition to the receipt of the item set forth in Section 1.4(c) (receipt of which may be waived by the Company in writing), each of the following shall also be a condition to the Company’s obligation to close (receipt of any one or more of which may be waived by the Company in writing): (i) Acquiror’s representations herein shall be true and correct in all material respects as of the Agreement Date and as of the Closing Date (except as to representations made as of a specific date, which shall be true as of such date and except for representations the breach of which would not affect or delay the Acquiror’s ability to consummate the Merger in accordance herewithdate) and the Company will have received a certificate dated as of the Closing Date to such effect executed on behalf of Acquiror by Acquiror’s Chief Executive Financial Officer; (ii) Acquiror shall have performed its covenants herein in all material respects; (iii) no material litigation or proceeding will be pending or threatened that will have the probable effect of enjoining or preventing the consummation of the Merger or any of the other transactions contemplated by this Agreement; Agreement shall be in effect and (iv) there shall not have been issued, enacted or adopted, or threatened in writing by any Governmental Entity, any order, decree, temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action or proceeding, or any judgment or ruling by any Governmental Entity that prohibits or renders illegal or imposes limitations on the Merger or any other material transaction contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Proofpoint Inc)
Closing Deliveries and Conditions. (a) The Company shall deliver to Acquiror, at or prior to the Closing, each of the following:
(i) the Company Stockholder Consent executed by each Company Stockholder listed on Exhibit B-2, or their proxyholder(s)the Major Stockholders;
(ii) a counterpart to the Escrow Agreement, in substantially the form attached hereto as Exhibit D, dated as of the Closing Date and executed by the Effective Time Holders’ Agent and Xxxxx Fargo Bank, N.A. (the “Escrow Agent”);
(iii) FIRPTA documentation, comprised of (A) a notice to the Internal Revenue Service, in accordance with the requirements of Treasury Regulation Section 1.897-2(h)(2), in substantially the form attached hereto as Exhibit E, dated as of the Closing Date and executed by the Company, together with written authorization for Acquiror to deliver such notice form to the Internal Revenue Service on behalf of the Company after the Closing, and (B) a FIRPTA Notification Letter, in substantially the form attached hereto as Exhibit F, dated as of the Closing Date and executed by the Company;
(iviii) resignations from each of the directors and each of the officers of the Company and each Subsidiary in office immediately prior to the Closing;
(viv) a Certificate of Status from the Secretary of State of the State of Delaware, the Secretary of State of the State of California and each other State or other jurisdiction in which the Company is qualified to do business as a foreign corporation, dated within seven days three Business Days prior to the Closing Date, and certifying that the Company is in good standing (to the extent such jurisdiction recognizes such concept) and, to the extent provided by such certificate and in such jurisdictioncertificate, that all applicable state franchise or similar Taxes and fees of the Company through and including the date of the certificate have been paid;
(viv) the Company Net Working Capital Certificate;
(viivi) evidence satisfactory to Acquiror of the consent to assignment of any Person whose consent to assignment assignment, as the case may be, may be required in connection with the Merger or any other transaction contemplated by this Agreement under the Contracts Agreement, as listed or described on Schedule 1.4(a)(vii) hereto1.4(a)(vi);
(viiivii) the minute book of the Company;
(ix) the Company Financial Statements;
(xviii) a counterpart to the form of the Employment Agreements and Non-Competition Agreements, executed by (A) each of the employees of the Company set forth on Schedule A to this Agreement Key Personnel (and none of which shall have been revoked) and (B) not less than 75% of the employees of the Company offered employment by Acquiror prior to the date of this Agreement (a sufficient number of which shall not have been revoked to ensure that Acquiror has unrevoked Employment Agreements with not less than 75% of the employees of the Company offered employment by Acquiror);
(xiix) the Spreadsheet and a certificate executed by the Chief Executive Officer of the Company, dated as of the Closing Date, certifying that such Spreadsheet is true, correct and complete;
(xiix) a certificate, dated as of the Closing Date and executed on behalf of the Company by its Secretary, attesting and certifying as to (A) the certificate of incorporation of the Company (and the certificate of incorporation or comparable organizational document of each of the Company’s certificate of incorporationSubsidiaries), (B) the bylaws of the Company (and the bylaws or comparable document of the Company’s bylawsSubsidiaries), (C) board copies of resolutions of the Company Board approving the Merger and this Agreement and terminating the Company’s 401(k) plan prior to the ClosingClosing and authorizing the transactions contemplated by this Agreement and the Company Related Agreements to which the Company is a party, and (D) stockholder consents adopting this Agreement, which consents shall represent approval the Company Stockholder Consent executed by Company Stockholders holding not less than 8590% of the outstanding shares of Company Capital Stock (on an as converted basis) (such stockholder consent threshold, the “Company Stockholder Approval”);
(xi) duly executed noteholder indemnity agreements (each a, “Noteholder Indemnity Agreement”) from each Company Noteholder with respect to the Company Notes substantially in the form attached as Exhibit G, which Noteholder Indemnity Agreements shall include: (A) the balance (including outstanding principal and accrued interest along with an agreement that such interest stops accruing as of the Closing Date and that no interest shall accrue under the Company Notes with respect to any portion of the Purchase Price placed in the Escrow Fund), (B) the per-diem interest amount, (C) a statement that upon pay-off of the indebtedness any related security interests in the Company’s assets shall immediately be released, (D) wiring instructions, (E) an agreement by such Company Noteholder to be subject to the provisions of this Agreement, including those concerning the indemnification obligations of the Indemnifying Holders, and (F) any other information reasonably requested by Acquiror;
(xii) a duly executed payoff letter from Silicon Valley Bank with respect to the SVB Debt (the “SVB Payoff Letter”), which SVB Payoff Letter shall include: (A) the balance (including outstanding principal and accrued interest with an acknowledgment that such interests stops accruing as of the Closing Date), (B) the per-diem interest amount, (C) a statement that upon pay-off of the indebtedness any related security interests in the Company’s assets shall immediately be released, (D) wiring instructions, and (E) any other information reasonably requested by Acquiror;
(xiii) a Payoff Lettercounterpart signature to the escrow agreement in substantially the form attached as Exhibit H (the “Escrow Agreement”), duly executed by each Company Debtholder and the Company;
(xiv) a Bank Payoff Letterparachute payment waiver, in a form reasonably acceptable to the Acquiror, duly executed by each holder of Bank DebtPerson required to execute such a waiver pursuant to Section 4.2;
(xivxv) an invoice (each, a “Vendor Invoice”) from each Person to whom Transaction Expenses are owed, as set forth on the Spreadsheet, which shall state the amount owed to such Person and shall indicate that, upon payment written consent of the stated amount, holders of Company Preferred Stock sufficient to effect the conversion of all outstanding obligations shares of the Company and the Subsidiaries Preferred Stock to such Person shall be satisfied and paid in fullCompany Common Stock; and
(xvxvi) the legal an opinion of Xxxxxx LLP, legal counsel to the Company, Company substantially in the form attached hereto as Exhibit G.I.
(b) Acquiror shall deliver to the Company, at or prior to the Closing, (i) a counterpart to the Escrow Agreement, in substantially the form attached hereto as Exhibit D, dated as of the Closing Date and executed by Acquiror and the Escrow Agent; and (ii) a certificate, dated as of the Closing Date and executed on behalf of Acquiror by its Secretary, certifying that the board of directors of Acquiror has approved this Agreement and the transactions contemplated by this Agreement and the Ancillary Agreements.
(c) In addition to receipt of the items set forth in Section 1.4(a)(i)-(a)(xv)(receipt 1.4(a)(i)-(xvi) (receipt of any one or more of which may be waived by Acquiror in writing), each of the following shall also be a condition to Acquiror and Merger Sub’s obligation to close (satisfaction of any one or more of which may be waived by Acquiror in writing): (i) since the date of the Merger Agreement, there shall not have been a Material Adverse Effect with respect to the Company; , (ii) there shall not be pending or threatened any material litigation against the Company (which shall be deemed to include any litigation relating to the Merger or this Agreement), (iii) the Company’s representations and warranties set forth herein shall be have been, or shall be, true and correct in all material respects as of the Agreement Date and as of the Closing Date (except as to representations and warranties made as of a specific date date, which shall be have been true and correct in all material respects as of such date) ), in each case without giving effect to any supplements or amendments to the Disclosure Schedules pursuant to Section 4.4 and Acquiror will shall have received a certificate dated as of the Closing Date to such effect effect, executed on behalf of the Company by the Company’s Chief Executive Officer; , (iiiiv) the Company shall have performed its covenants herein in all material respects and shall have performed its covenants in Section 4.9 in all respects; , (ivv) the Company Stockholder Approval shall have been obtained, (vi) no material litigation or proceeding shall be pending or threatened against the Company, that will may have the probable effect of enjoining or preventing the consummation of the Merger or any of the other transactions contemplated by this Agreement; , (vvii) at least 90% of the employees of the Company, to whom Acquiror has offered employment with Acquiror or an Affiliate of Acquiror (not including the Key Personnel), shall have accepted offer letters with Acquiror, such offer letters to be contingent and effective upon the Closing, (viii) the Company (A) shall have terminated the Non-Continuing Employees in accordance with Section 6.6; (vi) on or prior prepared for submission to the Closing DateInternal Revenue Service the correction notice under Notice 2008-113 with respect to those amounts payable to Xxxx Xxxxxx pursuant to the Xxxxxx and XxXxxxxxx Amounts to the extent such amounts are eligible for such correction and require such correction in order to avoid Section 409A additional Taxes, the Company income reporting or income inclusion and (B) shall have paid in full, or shall have caused a Subsidiary provided proper and full notice of same to Xxxx Xxxxxx pursuant to the Company to pay in full, all accrued but unused vacation time and other paidapplicable requirements of Notice 2008-time-off previously owed to employees of the Company or any Subsidiary of the Company based in the United States, whether or not such employees are offered employment by Acquiror in connection with the Closing; 113 and (viiix) there shall not have been issued, enacted or adopted, or threatened in writing by any Governmental Entity, any order, decree, temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action or proceeding, or any judgment or ruling by any Governmental Entity that prohibits or renders illegal or imposes limitations on the Merger or any other material transaction contemplated by this Agreement.
(dc) Each of the following shall be a condition to the Company’s obligation to close (receipt of any one or more of which may be waived by the Company in writing): (i) Acquiror’s and Merger Sub’s representations and warranties set forth herein shall be have been, or shall be, true and correct in all material respects as of the Agreement Date and as of the Closing Date (except as to representations and warranties made as of a specific date, which shall be have been true and correct in all material respects as of such date and except for representations the breach of which would not affect or delay the Acquiror’s ability to consummate the Merger in accordance herewithdate) and the Company will have received a certificate dated as of the Closing Date to such effect effect, executed on behalf of Acquiror by Acquiror’s Chief Executive Financial Officer; , (ii) Acquiror and Merger Sub shall have performed its covenants herein or complied in all material respects; respects with all obligations required to be performed or complied with by them under this Agreement at or prior to the Effective Time, (iii) no litigation or proceeding will be pending or threatened that will have the probable effect of enjoining or preventing the consummation of the Merger or any of the other transactions contemplated by this Agreement; and (iv) there shall not have been issued, enacted or adopted, or threatened in writing by any Governmental Entity, any order, decree, temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action or proceeding, or any judgment or ruling by any Governmental Entity that prohibits or renders illegal or imposes limitations on the Merger or any other material transaction contemplated by this Agreement, (iv) Acquiror shall deliver the counterparts to the Employment Agreements and Non-Competition Agreements executed by Acquiror or a Subsidiary of Acquiror (and no such Employment Agreements or Non-Competition Agreements shall have been revoked by Acquiror) and (v) the Escrow Agreement executed by Acquiror.
Appears in 1 contract
Samples: Merger Agreement (Proofpoint Inc)
Closing Deliveries and Conditions. (a) The obligations of the Acquiror and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the Company shall deliver having delivered to Acquiror, at or prior to the Closing, each of the following:
(i) the Company Stockholder Consent executed by each Company Stockholder listed on Exhibit B-2, or their proxyholder(s);
(ii) a counterpart to the Escrow Agreement, in substantially the form attached hereto as Exhibit D, dated as of the Closing Date and executed by the Effective Time Holders’ Agent and Xxxxx Fargo Bank, N.A. (the “Escrow Agent”);
(iii) FIRPTA documentation, comprised of (A) a notice to the Internal Revenue Service, in accordance with the requirements of Treasury Regulation Section 1.897-2(h)(2), in substantially the form attached hereto as Exhibit E, dated as of the Closing Date and executed by the Company, together with written authorization for Acquiror to deliver such notice form to the Internal Revenue Service on behalf of the Company after the Closing, and (B) a FIRPTA Notification Letter, in substantially the form attached hereto as Exhibit F, dated as of the Closing Date and executed by the Company;
(iv) resignations from each of the directors and each of the officers of the Company and each Subsidiary in office office, to be effective as of immediately prior to the Closing;
(vii) a Certificate of Status certificate from the Secretary of State of the State of Delaware, the Secretary of State of the State of California Delaware and each other State or other jurisdiction in which the Company is qualified to do business as a foreign corporation, dated within seven three days prior to the Closing Date, and certifying that the Company is in good standing (to the extent such jurisdiction recognizes such concept) and, to the extent provided by such certificate and in such jurisdictioncertificate, that all applicable state franchise or similar Taxes and fees of the Company through and including the date of the certificate have been paid;
(iii) all third party consents listed on Schedule 1.4(a)(iii) (including without limitation the consent of The Regents of the University of New Mexico and/or STC.UNM as applicable (“UNM”) to assign all UNM/Company contracts);
(iv) a counterpart to the Employment Agreement, executed by Xxx Xxxxxxxxxx (which shall not have been revoked);
(v) a counterpart to the Non-Competition Agreements, executed by each of the Founders (and neither thereof shall have been revoked);
(vi) a counterpart to the Company Net Working Capital CertificateEscrow Agreement, in substantially the form attached hereto as Exhibit B (the “Escrow Agreement”), dated as of the Closing Date and executed by the Stockholders’ Agent and the Escrow Agent;
(vii) evidence satisfactory the Spreadsheet completed to Acquiror include all of the consent to assignment of any Person whose consent to assignment may be required information specified in connection with the Merger or any other transaction contemplated by this Agreement under the Contracts listed or described on Schedule 1.4(a)(viiSection 2.2(c) hereto;
(viii) the minute book of the Company;
(ix) the Company Financial Statements;
(x) a counterpart to the form of the Employment Agreements, executed by (A) each of the employees of the Company set forth on Schedule A to this Agreement (none of which shall have been revoked) and (B) not less than 75% of the employees of the Company offered employment by Acquiror prior to the date of this Agreement (a sufficient number of which shall not have been revoked to ensure that Acquiror has unrevoked Employment Agreements with not less than 75% of the employees of the Company offered employment by Acquiror);
(xi) the Spreadsheet and a certificate executed by the Chief Executive Officer of the CompanyXxx Xxxxxxxxxx, dated as of the Closing Date, certifying that such Spreadsheet is true, correct and complete;
(xiiviii) true, correct and complete copies of all election statements under Section 83(b) of the Code that are in the Company’s possession or that the Company can obtain through commercially reasonable efforts with respect to any unvested securities or other property ever issued by the Company or any ERISA Affiliate to any of their respective employees, non-employee directors, consultants and other service providers;
(ix) a certificate, dated as of the Closing Date and executed on behalf of the Company by its Secretary, certifying as to an attached copy of the Company’s (A) the Company’s certificate of incorporation, ; (B) the Company’s bylaws, ; (C) board resolutions of the Company its board of directors adopting this Agreement, and, thus, approving the Merger and this Agreement and terminating the Company’s 401(k) plan prior to the Closing, Merger; and (D) stockholder consents a unanimous written consent of the Company’s stockholders adopting this AgreementAgreement and, which consents shall represent approval by Company Stockholders holding not less than 85% thus, approving the material terms of the outstanding Company Capital Stock Merger (such stockholder consent threshold, the “Company Unanimous Stockholder ApprovalConsent”);
(xiiix) a Payoff Letter, duly executed by each certification certifying that the Company Debtholder and a Bank Payoff Letter, in a form reasonably acceptable to Acquiror, duly executed by each holder of Bank Debt;
(xiv) an invoice (each, is not a “Vendor Invoice”) from each Person to whom Transaction Expenses are owed, as set forth on the Spreadsheet, which shall state the amount owed to such Person and shall indicate that, upon payment of the stated amount, all outstanding obligations of the Company U.S. real property holding corporation” and the Subsidiaries to such Person shall be satisfied and paid in fullnotification required under Treasury Regulation Section 1.897-2(h)(2); and
(xvxi) the legal opinion of Xxxxxx LLP, counsel Patent License Agreement (as defined in Section 2.8) shall be in effect and a full and final copy thereof delivered to the Company, in the form attached hereto as Exhibit G.Acquiror.
(b) Acquiror shall deliver to the Company, at or prior to the Closing, (i) a counterpart to the Escrow Agreement, in substantially the form attached hereto as Exhibit D, dated as of the Closing Date and executed by Acquiror and the Escrow Agent; and (ii) a certificate, dated as of the Closing Date and executed on behalf of Acquiror by its Secretary, certifying that the board of directors of Acquiror has approved this Agreement and the transactions contemplated by this Agreement and the Ancillary Agreements.
(c) In addition to receipt of the items set forth in Section 1.4(a)(i)-(a)(xv)(receipt of any one or more of which may be waived by Acquiror in writing)Additionally, each of the following shall also be a condition to Acquiror and Merger SubAcquiror’s obligation to close (satisfaction of any one or more of which may be waived consummate the transactions contemplated by Acquiror in writing): this Agreement: (i) that since the date of the Merger AgreementAgreement Date, there shall not have been a Material Adverse Effect with respect as to the Company; (ii) that there shall not be pending or threatened any material litigation against the Company (which shall be deemed to include any litigation relating to the Merger or this Agreement); (iii) that the Company’s representations herein shall be are true and correct in all material respects as of the Agreement Date and in all material respects as of the Closing Date (except as to representations made as of a specific date which shall be true and correct in all material respects as of such date) ); and Acquiror will have received a certificate dated as of the Closing Date to such effect executed on behalf of the Company by the Company’s Chief Executive Officer; (iiiiv) the Company shall have performed its covenants herein required to be performed prior to Closing in all material respects; respects as of immediately prior to Closing.
(ivc) no material litigation shall be pending or threatened against the Company, that will have the probable effect of enjoining or preventing the consummation The obligations of the Merger or any of Company to consummate the other transactions contemplated by this Agreement; (v) Agreement are subject to the Company shall have terminated Acquiror having delivered to the Non-Continuing Employees in accordance with Section 6.6; (vi) on Company, at or prior to the Closing, each of the following:
(i) the Escrow Agreement, dated as of the Closing Date and executed by the Acquiror;
(ii) the Registration Rights Agreement attached as Exhibit C, executed by the Acquiror; and
(iii) a summary capitalization report of the Acquiror as of the Agreement Date, in a form reasonably approved by the Company shall have paid in fullCompany, or shall have caused and a Subsidiary certificate executed by the Chief Executive Officer, certifying that such capitalization report as of the Company to pay in fullAgreement Date is true, all accrued but unused vacation time correct and other paid-time-off previously owed to employees of the Company or any Subsidiary of the Company based in the United States, whether or not such employees are offered employment by Acquiror in connection with the Closing; and (vii) there shall not have been issued, enacted or adopted, or threatened in writing by any Governmental Entity, any order, decree, temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action or proceeding, or any judgment or ruling by any Governmental Entity that prohibits or renders illegal or imposes limitations on the Merger or any other material transaction contemplated by this Agreement.complete;
(d) Each of the following shall be a condition to the Company’s obligation to close (receipt of any one or more of which may be waived consummate the transactions contemplated by the Company in writing): this Agreement: (i) that Acquiror’s representations herein shall be are true and correct in all material respects as of the Agreement Date and as of the Closing Date (except as to representations made as of a specific date, which shall be true in all material respects as of such date and except for representations the breach of which would not materially adversely affect or delay the Acquiror’s ability to consummate the Merger in accordance herewith) herewith or to perform its other obligations in this Agreement); provided that, the accuracy of Acquiror’s representations and the Company will have received a certificate dated warranties in Section 3.9 as of the Closing Agreement Date shall not be a condition to such effect executed on behalf of Acquiror by AcquirorCompany’s Chief Executive Officer; (ii) Acquiror shall have performed its covenants herein in all material respects; (iii) no litigation or proceeding will be pending or threatened that will have obligation to consummate the probable effect of enjoining or preventing the consummation of the Merger or any of the other transactions contemplated by this Agreement; and (ivii) there that Acquiror shall not have been issued, enacted or adopted, or threatened performed its covenants required to be performed prior to Closing in writing by any Governmental Entity, any order, decree, temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action or proceeding, or any judgment or ruling by any Governmental Entity that prohibits or renders illegal or imposes limitations on all material respects as of immediately prior to Closing.
(e) Each of the Merger or any other material transaction following shall be a condition to each party’s obligation to consummate the transactions contemplated by this Agreement: (i) any applicable regulatory clearance has been obtained; (ii) there is no injunction, judgment or decree to which the Company, or any of the assets owned by the Company, is subject or which materially restricts the ability of the Company to conduct its business and (iii) no injunction or other order or decree issued by any Governmental Authority of competent jurisdiction is in effect which prevents the consummation of the Merger on the terms contemplated herein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Oncothyreon Inc.)
Closing Deliveries and Conditions. (a) The Company shall deliver to AcquirorAcquirer, at or prior to the Closing, each of the following:
(i) the (A) The Company Stockholder Consent executed by each the Major Stockholders, and (B) Joinder Agreements executed by the Major Stockholders and other Company Stockholder listed on Exhibit B-2, or their proxyholder(s)Stockholders that collectively hold at least 90% of the Company Capital Stock as of immediately prior to the Effective Time;
(ii) a counterpart signature to the Escrow Agreement, in substantially the form attached hereto as Exhibit DJ (the “Escrow Agreement”), dated as of the Closing Date and duly executed by the Effective Time HoldersStockholders’ Agent and Xxxxx Fargo BankCitibank, N.A. (the “Escrow Agent”);
(iii) FIRPTA documentation, comprised of (A) a notice to the Internal Revenue Service, in accordance with the requirements of Treasury Regulation Section 1.897-2(h)(2), in substantially the form attached hereto as Exhibit EK-1, dated as of the Closing Date and executed by the Company, together with written authorization for Acquiror Acquirer to deliver such notice form to the Internal Revenue Service on behalf of the Company after the Closing, and (B) a FIRPTA Notification Letter, in substantially the form attached hereto as Exhibit FK-2, dated as of the Closing Date and executed by the Company;
(iv) resignations from each position as an officer or director of the Company and each Subsidiary executed by each of the directors and each of the officers of the Company and each Subsidiary in office immediately prior to the Closing;
(v) a Certificate of Status from the Secretary of State of the State of Delaware, the Secretary of State of the State Commonwealth of California Pennsylvania and each other State or other jurisdiction in which the Company is qualified to do business as a foreign corporation, dated within seven days five (5) Business Days prior to the Closing Date, and certifying that the Company is in good standing (to the extent such jurisdiction recognizes such concept) and, to the extent provided by such certificate and in such jurisdictioncertificate, that all applicable state franchise or similar Taxes and fees of the Company through and including the date of the certificate have been paid;
(vi) the Company Net Working Capital Certificate;
(vii) evidence satisfactory to Acquiror Acquirer of (A) the consent to assignment of any Person whose consent to assignment may reasonably be required in connection with the Merger or any other transaction contemplated by this Agreement or (B) the notice of assignment to any Person to which notice of assignment may reasonably be required in connection with the Merger or any other transaction contemplated by this Agreement, in each case under the Material Contracts listed or described on Schedule 1.4(a)(vii1.4(a)(vi) hereto;
(vii) the Company Closing Financial Certificate;
(viii) a counterpart signature to the minute book Installment Payment Agreements, duly executed by each of the CompanyRevesting Holders;
(ix) a counterpart signature to the Company Financial StatementsWarrant Cancellation Agreements, duly executed by each of the holders of Vested In-the-Money Warrants outstanding as of immediately prior to the Effective Time, if any;
(x) a counterpart signature to the form of the Employment Option Cancellation Agreements, duly executed by (A) each of the employees holders of the Company set forth on Schedule A to this Agreement (none In-the-Money Options outstanding as of which shall have been revoked) and (B) not less than 75% of the employees of the Company offered employment by Acquiror immediately prior to the date of this Agreement (a sufficient number of which shall not have been revoked to ensure that Acquiror has unrevoked Employment Agreements with not less than 75% of the employees of the Company offered employment by Acquiror)Effective Time;
(xi) the Spreadsheet and a certificate executed by the Chief Executive Financial Officer of the Company, dated as of the Closing Date, certifying that such the Spreadsheet is true, correct and complete, other than amounts which are estimates in the Company Closing Financial Statements, which amounts are the Company’s good faith estimates of such amounts;
(xii) a certificate, dated as of the Closing Date and executed on behalf of the Company by its Secretary, certifying the Company’s (A) the Company’s certificate of incorporation, (B) the Company’s bylaws, (C) board resolutions of the Company approving the Merger and this Agreement and terminating the Company’s 401(k) plan prior to the Closing, and (D) stockholder consents approving the Merger and adopting this Agreement, which consents shall represent approval by Company Stockholders holding not less than 85% of the outstanding Company Capital Stock (such stockholder consent threshold, the “Minimum Company Stockholder Approval”);.
(xiii) a Payoff Acquirer shall have received an executed pay off and Encumbrance release letter (the “Pay Off Letter, duly executed by each Company Debtholder and a Bank Payoff Letter, in a form reasonably acceptable to Acquiror, ”) duly executed by each holder of Bank Debt;Company Debt in form and substance reasonably satisfactory to Acquirer. Each such Pay Off Letter shall include or be accompanied by (i) the balance (including the outstanding principal and accrued interest), (ii) the per diem interest amount, (iii) expenses and other payment obligations that would arise (whether or not then due and payable) if all such items under clause (i) were prepaid, extinguished, unwound and settled in full, (iv) a statement that upon pay off of the indebtedness any related security interests in the Company’s assets shall immediately be released, (v) an authorization for the Surviving Corporation or the Acquirer or their representatives to file any UCC-3 termination statement with respect to such released security interests or an attached UCC-3 termination statement, and (vi) wiring instructions.
(xiv) an invoice (each, a “Vendor Invoice”) from each Person to whom Transaction Expenses are owed, as set forth on the SpreadsheetCompany Closing Financial Certificate, which shall state the amount owed to such Person with respect to such Transaction Expenses and shall indicate that, upon payment of the stated amount, all outstanding obligations of the Company and the Subsidiaries to such Person with respect to such Transaction Expenses shall be satisfied and paid in full; and;
(xv) either (A) the legal opinion of Xxxxxx LLPCompany shall have obtained the Section 280G Approval with respect to, counsel or (B) the Company shall have received a Parachute Payment Waiver (“Parachute Payment Waiver”) from, any Person who the Company reasonably believes is, with respect to the Company, in a “disqualified individual” (within the form attached hereto as Exhibit G.
(b) Acquiror shall deliver meaning of Section 280G and the regulations promulgated thereunder), or who might otherwise receive, have received, or have the right or entitlement to the Company, at or prior to the Closing, (i) receive a counterpart to the Escrow Agreement, in substantially the form attached hereto as Exhibit D, dated as parachute payment under Section 280G of the Closing Date and executed by Acquiror and the Escrow Agent; and (ii) a certificate, dated as Code in connection with consummation of the Closing Date and executed on behalf of Acquiror by its Secretary, certifying that the board of directors of Acquiror has approved this Agreement and the transactions contemplated by this Agreement Agreement;
(xvi) the Certificate of Merger, executed by the Company; and
(xvii) evidence of an amendment to the CMU License Agreement, in the form approved by Acquirer, to provide the Company, and Acquirer following the Ancillary AgreementsClosing, with a royalty free, fully paid, exclusive, perpetual license of the technology as described therein, and payments of any amounts due pursuant to such amendment.
(cb) In addition to receipt of the items set forth in Section 1.4(a)(i)-(a)(xv)(receipt 1.4(a)(i)-(xviii) (receipt of any one or more of which may be waived by Acquiror Acquirer in writing), each of the following shall also be a condition to Acquiror Acquirer and Merger Sub’s obligation to close (satisfaction of any one or more of which may be waived by Acquiror Acquirer in writing): ):
(i) since the date of the Merger AgreementAgreement Date, there shall not have been a Material Adverse Effect with respect to the Company; ;
(ii) the Company’s representations herein and warranties set forth in Article II hereof shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or Material Adverse Effect, which representations and warranties as of the Agreement Date so qualified shall be true and correct in all respects) on and as of the Closing Date (except as to representations and warranties made as of a specific date which shall be true as of such date) as though such representations and Acquiror warranties were made on and as of such date in all cases without giving effect to any supplements or amendments to the Company Disclosure Schedule pursuant to Section 4.3, and Acquirer will have received a certificate dated as of the Closing Date to such effect executed on behalf of the Company by the Company’s Chief Executive Officer; Executive;
(iii) the Company shall have performed its covenants herein or complied in all material respects; respects with all obligations required to be performed or complied with by it under this Agreement at or prior to the Effective Time;
(iv) no material litigation shall or proceeding will be pending or threatened against the Company, in writing that has had or will have the probable effect of enjoining or preventing the consummation of the Merger or Merger;
(v) neither the Chief Executive nor any of the other transactions contemplated by this Agreement; (v) Key Employees shall have revoked acceptance such individual’s Offer Letters or applicable Non-Compete Agreement and none of the Key Employees shall have provided notice to the Company shall have terminated or Acquirer or expressed any intent not to continue as an employee after the Non-Continuing Employees in accordance with Section 6.6; Closing;
(vi) on or prior to the Closing Date, the Company shall have paid in full, or shall have caused a Subsidiary no fewer than 90% of the Company to pay in full, all accrued but unused vacation time and employees or other paid-time-off previously owed to employees service providers of the Company or any Subsidiary (excluding the Chief Executive and the Key Employees) shall have remained continuously employed or in service with the Company or a Subsidiary through the Closing without having given notice of an intent to resign;
(vii) all Persons promised any equity interest of the Company based that were not granted or issued as of the Agreement Date, including those provided in Section 2.2(g) of the United StatesCompany Disclosure Schedule, whether shall have provided a full release of all rights to such equity interests of the Company promised but not granted to such Persons, in form and substance reasonably acceptable to Acquirer;
(viii) all filings with and approvals of any Governmental Entity required to be made or not such employees are offered employment by Acquiror obtained in connection with the Closing; and (vii) there shall not have been issued, enacted or adopted, or threatened in writing by any Governmental Entity, any order, decree, temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action or proceeding, or any judgment or ruling by any Governmental Entity that prohibits or renders illegal or imposes limitations on the Merger or any other material transaction transactions contemplated by this AgreementAgreement shall have been made or obtained and shall be in full force and effect and the applicable waiting period required under the HSR Act and other applicable Antitrust Laws shall have expired or early termination of such waiting period shall have been granted by the applicable Governmental Entity (the “Antitrust Condition”); and
(ix) the sum of (i) the number of Dissenting Shares and (ii) the number of shares of Company Capital Stock held by holders thereof for whom the twenty (20) day period during which a stockholder must demand appraisal of such stockholder's Company Capital Stock as contemplated by Section 262(d)(2) of Delaware Law has not expired shall not exceed five percent (5%) of the issued and outstanding shares of the Company Capital Stock.
(dc) Each of the following shall be a condition to the Company’s obligation to close (receipt of any one or more of which may be waived by the Company in writing): ):
(i) AcquirorAcquirer’s and Merger Sub’s representations herein and warranties in Article III hereof shall be true and correct in all material respects as of the Agreement Date and as of the Closing Date (except as to representations and warranties made as of a specific date, which shall be true as of such date) as though such representations and warranties were made on and as of such date and except for representations the breach of which would not affect or delay the Acquiror’s ability to consummate the Merger in accordance herewith) and the Company will have received a certificate dated as of the Closing Date to such effect executed on behalf of Acquiror Acquirer by Acquiror’s Chief Executive Officer; an officer of Acquirer;
(ii) Acquiror Acquirer and Merger Sub shall have performed its covenants herein or complied in all material respects; respects with all obligations required to be performed or complied with by them under this Agreement at or prior to the Effective Time;
(iii) no litigation or proceeding will be pending or threatened in writing that has had or will have the probable effect of enjoining or preventing the consummation of the Merger or any of the other transactions contemplated by this Agreement; and Merger;
(iv) there shall not have been issued, enacted or adopted, or threatened in writing by any Governmental Entity, any order, decree, temporary, preliminary or permanent injunction, legislative enactment, statute, regulation, action or proceeding, or any judgment or ruling by any Governmental Entity that prohibits or renders illegal or imposes limitations on the Merger;
(v) The Stockholders’ Agent shall have received a counterpart signature to the Escrow Agreement dated as of the Closing Date and duly executed by the Acquirer and the Escrow Agent;
(vi) stockholder consents approving the Merger or any other material transaction contemplated by and adopting this Agreement, which consents shall represent the Minimum Company Stockholder Approval shall have been obtained; and
(vii) satisfaction of the Antitrust Condition.
Appears in 1 contract
Samples: Merger Agreement (Proofpoint Inc)
