Conditions Precedent to Each Party’s Obligation to Effect the Merger. The respective obligation of each party to consummate the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions precedent: (a) the transactions contemplated in this Agreement shall have been approved, and the Agreement shall have been adopted, by the affirmative vote of the Stock- holders of the Company by the requisite vote in accordance with the GBCC and any agreements among Stockholders; (b) no order, decree or injunction shall have been enacted, entered, promulgated or enforced by any United States court of competent jurisdiction or any United States governmental authority which prohibits the consummation of the Merger; provided, however, that the parties hereto shall use their commercially reasonable best efforts to have any such order, decree or injunction vacated or reversed; (c) any waiting period applicable to the Merger under the HSR Act shall have terminated or expired; (d) the receipt by BellSouth and the Company, based on customary assumptions and on representations set forth in certificates of officers of BellSouth and the Company (including, without limitation, a continuity of interest representation that satisfies the requirements of Revenue Procedure 86-42), of the opinion of Hunton & Xxxxxxxx (dated the Effective Date) to the effect that, for United States federal income tax purposes, (i) the Merger will constitute a "reorganization" under Section 368(a) of the Code, (ii) no gain or loss will be recognized by BellSouth, BellSouth Sub or the Company upon consummation of the Merger, (iii) no gain or loss will be recognized by Stockholders upon the exchange of shares of the Company Common Stock solely for shares of BellSouth Common Stock (including any fractional share interest) in the Merger, (iv) a Stockholder's aggregate basis in BellSouth Common Stock (including any fractional share interest) received in the Merger will be the same as the Stockholder's basis in the Company Common Stock surrendered in exchange therefor, (v) the holding period for shares of BellSouth Common Stock (including any fractional share interest) received by a Stockholder in the Merger will include the holding period for the shares of the Company Common Stock exchanged therefor, if such shares of the Company Common Stock are held as a capital asset at the Effective Time, and (vi) cash received in lieu of a fractional share of BellSouth Common Stock will be treated as having been received as full payment in exchange for such fractional share; (e) the Registration Statement shall be effective under the Securities Act, all applicable requirements of the Securities Act and Exchange Act shall have been satisfied, any applicable filings under state securities, "Blue Sky" or takeover laws shall have been made and BellSouth shall have received all state securities laws or "Blue Sky" permits and other authorizations or there shall be exemptions from registration requirements necessary to offer and issue the BellSouth Common Stock in connection with the Merger, and neither the Registration Statement nor any such permit, authorization or exemption shall be subject to a stop order or threatened stop order by the SEC or any state securities authority; (f) if the shares of BellSouth Common Stock to be issued in the Merger are not repurchased on the open market, such shares to be issued in the Merger shall have been approved for listing, upon notice of issuance, on the NYSE; and (g) the transactions contemplated by this Agreement shall (i) be permitted by the laws and regulations of each jurisdiction or Governmental Entity including, without limitation, the FCC to which the Companies or any of their Affiliates are subject and (ii) not violate any applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Bellsouth Corp)
Conditions Precedent to Each Party’s Obligation to Effect the Merger. The respective obligation of each party to consummate the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions precedent:
(a) the transactions contemplated in this Agreement shall have been approved, and the Agreement shall have been adopted, adopted by the affirmative vote of the Stock- holders stockholders of the Company Virginia Gas by the requisite vote in accordance with the GBCC and any agreements among StockholdersDGCL (it being understood that such adoption occurred at the Stockholder Meeting);
(b) no order, decree or injunction shall have been enacted, entered, promulgated or enforced by any United States court of competent jurisdiction or any United States governmental authority Governmental Authority which prohibits the consummation of the Merger; provided, however, that the parties hereto shall use their commercially reasonable best efforts to have any such order, decree or injunction vacated or reversed;
(c) any the Registration Statement shall remain effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect;
(d) (i) the waiting period applicable to the Merger under the HSR Act shall have terminated or expiredexpired (it being understood that early termination of such waiting period was granted by the Federal Trade Commission in September 27, 2000), (ii) all applicable requirements of the Exchange Act shall have been satisfied, (iii) all NUI Holding Required Consents and Virginia Gas Required Consents shall have been made or obtained (as the case may be) and become final and (iv) any applicable filings under state securities, "Blue Sky" or takeover laws shall have been made;
(de) the receipt by BellSouth and the Companyparties hereto, based on customary assumptions and on representations set forth in certificates of officers of BellSouth NUI Holding and the Company (including, without limitation, a continuity of interest representation that satisfies the requirements of Revenue Procedure 86-42)Virginia Gas, of the opinion of Hunton & Xxxxxxxx addressed to the board of directors of NUI Holding and the board of directors of Virginia Gas (dated the date of the Effective DateTime) to the effect that, for United States federal income tax purposes, (i) the Merger will constitute a "reorganization" under Section 368(a) of the Code, (ii) no gain or loss will be recognized by BellSouthNUI Holding, BellSouth Sub Merger Subsidiary or the Company Virginia Gas upon consummation of the Merger, (iii) no gain or loss will be recognized by Stockholders stockholders of Virginia Gas (other than stockholders who are nonresident aliens or foreign persons or otherwise subject to special treatment under federal income tax law) upon the exchange of shares of the Company Virginia Gas Common Stock solely for shares of BellSouth NUI Holding Common Stock (including any fractional share interest) in the Merger, (iv) a Stockholder's the aggregate basis in BellSouth Common Stock (including any fractional share interest) received in the Merger will be the same as the Stockholder's basis in the Company Common Stock surrendered in exchange therefor, (v) the holding period for of shares of BellSouth NUI Holding Common Stock (including any fractional share interest) received by a Stockholder Virginia Gas stockholder in the Merger will be the same as the aggregate basis of the shares of Virginia Gas Common Stock exchanged therefor, (v) the holding period for shares of NUI Holding Common Stock (including any fractional share interest) received by a Virginia Gas stockholder in the Merger will include the holding period for the shares of the Company Virginia Gas Common Stock exchanged therefor, if such shares of the Company Virginia Gas Common Stock are held as a capital asset at the Effective Time, Time and (vi) cash received in lieu of a fractional share of BellSouth NUI Holding Common Stock will be treated as having been received as full payment in exchange for such fractional share;
(e) the Registration Statement shall be effective under the Securities Act, all applicable requirements of the Securities Act and Exchange Act shall have been satisfied, any applicable filings under state securities, "Blue Sky" or takeover laws shall have been made and BellSouth shall have received all state securities laws or "Blue Sky" permits and other authorizations or there shall be exemptions from registration requirements necessary to offer and issue the BellSouth Common Stock in connection with the Merger, and neither the Registration Statement nor any such permit, authorization or exemption shall be subject to a stop order or threatened stop order by the SEC or any state securities authority;; and
(f) if the shares of BellSouth NUI Holding Common Stock required to be issued in the Merger are not repurchased on the open market, such shares to be issued in the Merger hereunder shall have been approved listed for listing, upon trading on the NYSE subject to official notice of issuance, on the NYSE; and
(g) the transactions contemplated by this Agreement shall (i) be permitted by the laws and regulations of each jurisdiction or Governmental Entity including, without limitation, the FCC to which the Companies or any of their Affiliates are subject and (ii) not violate any applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Nui Corp /Nj/)
Conditions Precedent to Each Party’s Obligation to Effect the Merger. The respective obligation of each party to consummate the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions precedent:
(a) : the transactions contemplated in this Agreement shall have been approved, and the Agreement shall have been adopted, adopted by the affirmative vote of the Stock- holders stockholders of the Company Virginia Gas by the requisite vote in accordance with the GBCC and any agreements among Stockholders;
(b) DGCL; no order, decree or injunction shall have been enacted, entered, promulgated or enforced by any United States court of competent jurisdiction or any United States governmental authority Governmental Authority which prohibits the consummation of the Merger; providedPROVIDED, howeverHOWEVER, that the parties hereto shall use their commercially reasonable best efforts to have any such order, decree or injunction vacated or reversed;
(c; the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order suspending such effectiveness shall have been issued and remain in effect;(i) any waiting period applicable to the Merger under the HSR Act shall have terminated or expired;
, (dii) all applicable requirements of the Exchange Act shall have been satisfied, (iii) all NUI Required Consents and Virginia Gas Required Consents shall have been made or obtained (as the case may be) and become final and (iv) any applicable filings under state securities, "Blue Sky" or takeover laws shall have been made; the receipt by BellSouth and the Companyparties hereto, based on customary assumptions and on representations set forth in certificates of officers of BellSouth NUI and the Company (including, without limitation, a continuity of interest representation that satisfies the requirements of Revenue Procedure 86-42)Virginia Gas, of the opinion of Hunton & Xxxxxxxx addressed to the board of directors of NUI and the board of directors of Virginia Gas (dated the date of the Effective DateTime) to the effect that, for United States federal income tax purposes, (i) the Merger will constitute a "reorganization" under Section 368(a) of the Code, (ii) no gain or loss will be recognized by BellSouthNUI, BellSouth Sub Merger Subsidiary or the Company Virginia Gas upon consummation of the Merger, (iii) no gain or loss will be recognized by Stockholders stockholders of Virginia Gas upon the exchange of shares of the Company Virginia Gas Common Stock solely for shares of BellSouth NUI Common Stock (including any fractional share interest) in the Merger, (iv) a Stockholder's the aggregate basis in BellSouth Common Stock (including any fractional share interest) received in the Merger will be the same as the Stockholder's basis in the Company Common Stock surrendered in exchange therefor, (v) the holding period for of shares of BellSouth NUI Common Stock (including any fractional share interest) received by a Stockholder Virginia Gas stockholder in the Merger will be the same as the aggregate basis of the shares of Virginia Gas Common Stock exchanged therefor, (v) the holding period for shares of NUI Common Stock (including any fractional share interest) received by a Virginia Gas stockholder in the Merger will include the holding period for the shares of the Company Virginia Gas Common Stock exchanged therefor, if such shares of the Company Virginia Gas Common Stock are held as a capital asset at the Effective Time, Time and (vi) cash received in lieu of a fractional share of BellSouth NUI Common Stock will be treated as having been received as full payment in exchange for such fractional share;
(e) ; and the Registration Statement shall shares of NUI Common Stock required to be effective under the Securities Act, all applicable requirements of the Securities Act and Exchange Act issued hereunder shall have been satisfied, any applicable filings under state securities, "Blue Sky" or takeover laws shall have been made and BellSouth shall have received all state securities laws or "Blue Sky" permits and other authorizations or there shall be exemptions from registration requirements necessary to offer and issue listed for trading on the BellSouth Common Stock in connection with the Merger, and neither the Registration Statement nor any such permit, authorization or exemption shall be NYSE subject to a stop order or threatened stop order by the SEC or any state securities authority;
(f) if the shares of BellSouth Common Stock to be issued in the Merger are not repurchased on the open market, such shares to be issued in the Merger shall have been approved for listing, upon official notice of issuance, on the NYSE; and
(g) the transactions contemplated by this Agreement shall (i) be permitted by the laws and regulations of each jurisdiction or Governmental Entity including, without limitation, the FCC to which the Companies or any of their Affiliates are subject and (ii) not violate any applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Virginia Gas Co)
Conditions Precedent to Each Party’s Obligation to Effect the Merger. The respective obligation obligations of each party Party to consummate effect the Merger is shall be subject to the satisfaction at fulfillment or satisfaction, prior to or on the Effective Time Closing Date, of the following conditions precedentconditions:
(a) the transactions contemplated in this Agreement The Merger shall have been approved, and the Agreement shall have been adopted, by the affirmative vote of the Stock- holders of the Company duly approved by the requisite vote of the outstanding shares of Diomed Capital Stock and Acquisition Common Stock entitled to vote thereon in accordance with the GBCC and any agreements among Stockholders;DGCL.
(b) no orderAll other authorizations, decree consents, orders, declarations or injunction approvals of, or filings with, or terminations or expirations of waiting periods imposed by, any governmental or regulatory authority, domestic or foreign, which the failure to obtain, make or occur would have the effect of making the Merger or any of the transactions contemplated hereby illegal or would have a Material Adverse Effect on Parent or Diomed (as Surviving Corporation), assuming the Merger had taken place, shall have been enactedobtained, entered, promulgated made or enforced by any United States court of competent jurisdiction or any United States governmental authority which prohibits the consummation of the Merger; provided, however, that the parties hereto shall use their commercially reasonable best efforts to have any such order, decree or injunction vacated or reversed;occurred.
(c) any waiting period applicable Parent has filed with the American Stock Exchange its application to the Merger under the HSR Act list thereon shares of Parent Common Stock and such application shall have terminated or expired;be pending, subject to official notice of issuance.
(d) Parent shall have entered into the receipt by BellSouth and Subscription Agreement substantially in the Companyform attached hereto as EXHIBIT B, based on customary assumptions and on representations set forth in certificates of officers of BellSouth and the Company (including, without limitation, pursuant to which Parent shall have consummated a continuity of interest representation that satisfies the requirements of Revenue Procedure 86-42), of the opinion of Hunton & Xxxxxxxx (dated the Effective Date) to the effect that, for United States federal income tax purposes, (i) the Merger will constitute a "reorganization" under Section 368(a) of the Code, (ii) no gain or loss will be recognized by BellSouth, BellSouth Sub or the Company upon consummation of the Merger, (iii) no gain or loss will be recognized by Stockholders upon the exchange private placement of shares of its common stock in an offering of securities that is exempt from the Company Common Stock solely for shares of BellSouth Common Stock (including any fractional share interest) in the Merger, (iv) a Stockholder's aggregate basis in BellSouth Common Stock (including any fractional share interest) received in the Merger will be the same as the Stockholder's basis in the Company Common Stock surrendered in exchange therefor, (v) the holding period for shares of BellSouth Common Stock (including any fractional share interest) received by a Stockholder in the Merger will include the holding period for the shares of the Company Common Stock exchanged therefor, if such shares of the Company Common Stock are held as a capital asset at the Effective Time, and (vi) cash received in lieu of a fractional share of BellSouth Common Stock will be treated as having been received as full payment in exchange for such fractional share;
(e) the Registration Statement shall be effective under the Securities Act, all applicable registration requirements of the Securities Act (the "PRIVATE PLACEMENT") and Exchange Act shall have raised in the Private Placement gross proceeds of at least $7,000,000 and not more than $10,000,000, after reduction for placement fees, all without waiver of or modification from any of the material terms or conditions of the Subscription Agreement, unless such changes have been satisfied, any applicable filings under state securities, "Blue Sky" or takeover laws previously agreed to in writing by Diomed.
(e) Parent shall have been made duly amended its Certificate of Incorporation to, among other things, (i) change its name to Diomed Holdings, Inc. upon Closing of the Merger and, (ii) if necessary create a new class of Parent Capital Stock, designated as Parent Class A Preferred Stock, with designations, privileges and BellSouth shall have received all state securities laws or "Blue Sky" permits and other authorizations or there shall be exemptions from registration requirements necessary to offer and issue limitations substantially in the BellSouth Common Stock in connection with the Merger, and neither the Registration Statement nor any such permit, authorization or exemption shall be subject to a stop order or threatened stop order by the SEC or any state securities authority;form attached hereto as EXHIBIT C.
(f) if Parent shall have assumed the shares obligations of BellSouth Common Stock to be issued Diomed under the Consulting Agreement with Verus Support Services, Inc. ("VSSI"), substantially in the Merger are not repurchased on the open marketform attached hereto as EXHIBIT D, such shares pursuant to be issued in the Merger which Verus shall have been agreed to provide financial consulting services to Parent for a period of eighteen months, at a consulting fee equal to $15,000 per month. The board of directors of Diomed and Parent shall have approved the Consulting Agreement pursuant to Section 144 of the DGCL and the cognate provisions of the applicable corporate law for listing, upon notice of issuance, on the NYSE; andParent.
(g) Parent shall have adopted the transactions contemplated by this Agreement shall (i) be permitted by By-laws substantially in the laws and regulations form attached hereto as EXHIBIT E, to, among other things, provide for the establishment of each jurisdiction or Governmental Entity including, without limitation, an audit committee of its board in accordance with the FCC to which listing requirements of the Companies or any of their Affiliates are subject and (ii) not violate any applicable LawAmerican Stock Exchange.
Appears in 1 contract
