Conditions Precedent to Merger. 6.1. Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions: (a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds of the outstanding shares of Class A Common Stock. (b) All consents, authorizations, orders and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor. (c) No governmental authority or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreement. (d) At the mailing date of the Proxy Statement and the date of the Stockholders' Meeting, the Proxy Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading.
Appears in 2 contracts
Samples: Merger Agreement (Riscorp Inc), Merger Agreement (Riscorp Inc)
Conditions Precedent to Merger. 6.1. 5.1 Conditions to Each Partythe Company's Obligations. The respective obligations of each party the Company to effect complete the Merger shall be are subject to the satisfaction on or prior to before the Closing Merger Date of each of the following conditions:conditions (any or all of which may be waived by the Company):
(a) This The representations and warranties of Pulte and Acquisition contained in this Agreement will, except as contemplated by this Agreement, be true and correct in all material respects (except that the representations and warranties of Pulte and Acquisition which are qualified as to materiality, or absence of Material Adverse Effect, will be true and correct in all respects) on the Merger shall Date with the same effect as though made on that date (except that representations or warranties which relate expressly to a specified date or a specified period need only have been true and correct with regard to the specified date or period and except for occurrences or conditions which are attributable to, or result directly from the public announcement or the pendency of the Merger), and Pulte will have delivered to the Company a certificate dated that date and signed by the President and Chief Financial Officer of Pulte to that effect.
(b) Pulte and Acquisition will have fulfilled in all material respects all their obligations under this Agreement required to have been fulfilled on or before the Merger Date, and Pulte will have delivered to the Company a certificate dated that date and signed by the President and Chief Financial Officer of Pulte to that effect.
(c) No order will have been entered by any court or governmental authority and be in force which invalidates this Agreement or restrains the Company from completing the transactions which are the subject of this Agreement, and no action will be pending against the Company, Pulte or Acquisition relating to the transactions which are the subject of this Agreement which presents a reasonable likelihood of resulting in an award of damages against the Company, Pulte or Acquisition which would reasonably be expected to have a Material Adverse Effect after the Merger on Pulte and its subsidiaries taken as a whole.
(d) The Merger will have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds a majority of the outstanding shares of Class A Company Common Stock.
(be) All consents, authorizations, orders and approvals identified on Schedule 5.6 required in connection with Since the execution, delivery and performance date of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the failure aggregate, have resulted in or would reasonably be expected to obtain which would prevent the consummation of the Merger or have a Material Adverse Effect on RISCORP Pulte, except occurrences or a Material Adverse Effect on Acquiror/Guarantorcircumstances which are attributable to, shall have been obtained without or result directly from, the imposition public announcement or the pendency of any condition having a Material Adverse Effect on RISCORP the Merger or a Material Adverse Effect on Acquiror/Guarantorwill result from the Merger.
(cf) No governmental authority Any waiting period (and any extensions thereof) under the HSR Act with regard to the Merger will have expired or been terminated.
(g) The shares of Pulte Common Stock issuable to the Company's stockholders as a result of the Merger will have been authorized for listing on the New York Stock Exchange, subject to official notice of issuance.
(h) The Registration Statement will have become effective under the Securities Act and will not be the subject of any stop order or any pending proceeding seeking a stop order, and any other regulatory body federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
(including any court of competent jurisdictioni) The Company shall have enactedreceived from Skadden, issuedArps, promulgatedSlate, enforced or entered any lawMeagxxx & Xlom XXX, rulespecial counsel to the Company, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has a written opinion dated as the Merger Date to the effect of making illegal or in any way preventing or prohibiting that for U.S. federal income tax purposes the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code. In rendering such opinion, counsel to the Company shall be entitled to make assumptions and rely upon representations and covenants provided by Pulte, Acquisition, and the Company, and Pulte, Acquisition, and the Company each hereby agree to provide counsel to the Company with such representations and covenants as counsel to the Company may reasonably request in connection with rendering the opinion.
(j) The Market Value of a share of Pulte Common Stock will not be less than $27.00; provided that the Company has provided written notice to Pulte of its irrevocable election (unless Pulte consents in writing to such notice being withdrawn by the Company) to terminate this Agreement pursuant to Section 6.1(j).
(k) The Director Nominees will have been elected to the Board of Directors of Pulte, effective immediately after the Effective Time.
(l) The Pulte Meeting Matters will have been approved by the holders of a majority of the shares of Pulte Common Stock present at Pulte's Merger Stockholders Meeting and entitled to vote thereon.
5.2 Conditions to Pulte's and Acquisition's Obligations. The obligations of Pulte and Acquisition to complete the Merger are subject to satisfaction on or before the transactions Merger Date of the following conditions (any or all of which may be waived by Pulte):
(a) The representations and warranties of the Company contained in this Agreement will, except as contemplated by this Agreement.
, be true and correct in all material respects (d) At except that the mailing date representations and warranties of the Proxy Statement and the date of the Stockholders' Meeting, the Proxy Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading.Company which are qualified as to
Appears in 2 contracts
Samples: Merger Agreement (Del Webb Corp), Merger Agreement (Pulte Corp)
Conditions Precedent to Merger. 6.1. 6.1 Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions:
(a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds a majority of the outstanding shares of Class A Company Common Stock.
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.
(c) No governmental authority or other regulatory body (including any court of competent jurisdiction) Governmental Authority shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal illegal, materially restricting or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreement.
(dc) The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose, or under the proxy rules of the SEC pursuant to the Exchange Act and with respect to the transactions contemplated hereby, shall be pending before or threatened by the SEC. At the mailing effective date of the Proxy Statement and the date of the Stockholders' MeetingRegistration Statement, the Proxy Registration Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading, and, at the mailing date of the Prospectus/Proxy Statement and the date of the Stockholders' Meeting, the Prospectus/Proxy Statement (as amended or supplemented to that date) shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading.
(d) The shares of Parent Common Stock to be issued in the Merger shall have been authorized for listing on the New York Stock Exchange upon official notice of issuance.
Appears in 2 contracts
Samples: Merger Agreement (HSB Group Inc), Merger Agreement (American International Group Inc)
Conditions Precedent to Merger. 6.1. 5.1 Conditions to Each Partythe Company's Obligations. The respective obligations of each party the Company to effect complete the Merger shall be are subject to the satisfaction on or prior to before the Closing Merger Date of each of the following conditions:conditions (any or all of which may be waived by the Company):
(a) This The representations and warranties of Lennar and Acquisition contained in this Agreement will, except as contemplated by this Agreement, be true and correct in all material respects (except that the representations and warranties of Lennar and Acquisition which are qualified as to materiality, or absence of Material Adverse Effect, will be true and correct in all respects) on the Merger shall Date with the same effect as though made on that date (except that representations or warranties which relate expressly to a specified date or a specified period need only have been approved true and adopted correct with regard to the specified date or period), and Lennar will have delivered to the Company a certificate dated that date and signed by the affirmative vote President or consent a Vice President of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds of the outstanding shares of Class A Common StockLennar to that effect.
(b) All consents, authorizations, orders Lennar and approvals identified Acquisition will have fulfilled in all material respects all their obligations under this Agreement required to have been fulfilled on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation of or before the Merger or Date, and Lennar will have delivered to the Company a Material Adverse Effect on RISCORP certificate dated that date and signed by the President or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without the imposition Vice President of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.
Lennar to that effect. 39 42 (c) No order will have been entered by any court or governmental authority and be in force which invalidates this Agreement or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has restrains the effect of making illegal or in any way preventing or prohibiting the Merger or Company from completing the transactions contemplated by which are the subject of this Agreement.
(d) At The Merger will have been approved by the mailing date holders of a majority of the Proxy Statement and outstanding shares of U.S. Home Common Stock.
(e) Since the date of this Agreement, no events shall have occurred and no circumstances shall have occurred that, individually or in the Stockholders' Meetingaggregate, have resulted in or would reasonably be expected to result in a Material Adverse Effect on Lennar.
(f) Any waiting period under the Proxy HSR Act with regard to the Merger will have expired or been terminated.
(g) The shares of Lennar Common Stock issuable to the Company's stockholders as a result of the Merger will have been authorized for listing on the New York Stock Exchange, subject to official notice of issuance.
(h) The Registration Statement shall will have become effective under the Securities Act and will not contain be the subject of any untrue statement stop order or any pending proceeding seeking a stop order, and any other federal and material state securities laws applicable to the issuance of Lennar Common Stock as a material factresult of the Merger have been complied with.
(i) The Company will have received a written opinion of Kaye, Xxholer, Fierman, Hays & Xandler, LLP, in form and substance reasonably satisfactory to the Company, dated on or omit about the Merger Date, to state any material fact necessary in order the effect that the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code, and that Lennar, Acquisition and the Company will each be a party to make a reorganization within the statements therein not misleading.meaning of Section 368(b) of the Code. In rendering
Appears in 2 contracts
Samples: Merger Agreement (Lennar Corp /New/), Plan and Agreement of Merger (U S Home Corp /De/)
Conditions Precedent to Merger. 6.1. 5.1 Conditions to Each Partythe Company's Obligations. The respective obligations of each party the Company to effect complete the Merger shall be are subject to the satisfaction on or prior to the Closing Date of each of the following conditions:conditions (any or all of which may be waived by the Company to the extent permitted by law):
(a) This The representations and warranties of Parent and Sub contained in this Agreement will be true and correct in all material respects (except that representations and warranties that are qualified by materiality, Material Adverse Effect or words of similar import shall be true and correct in all respects) on the Merger shall Date with the same effect as though made on that date (except that representations or warranties which relate expressly to a specified date or a specified period need only have been true and correct with regard to the specified date or period), and Parent will have delivered to the Company a certificate dated that date and signed by the President or a Vice President of Parent to that effect.
(b) Parent and Sub will have fulfilled in all material respects all their obligations under this Agreement required to have been fulfilled on or before the Merger Date, and Parent will have delivered to the Company a certificate dated that date and signed by the President or a Vice President of Parent to that effect.
(c) No order will have been entered by any Governmental Entity and be in force which invalidates this Agreement or restrains the Company from completing the transactions which are the subject of this Agreement.
(d) The Merger will have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds of the outstanding shares of Class A Company Common Stock.
(be) The applicable waiting periods under the HSR Act will have expired or been terminated.
(f) All consents, authorizations, orders licenses and approvals identified on Schedule 5.6 required from all Governmental Entities (including approvals of transfers of licenses and permits and of a change in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation control of the Company and its subsidiaries) which are necessary to complete the Merger will have been obtained, and all required approvals and consents of Government Entities necessary to complete the Merger shall have been obtained.
(g) The Company shall have received an opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel to the Company, dated the Merger Date, to the effect that the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. In rendering its opinion, counsel may require, and rely upon facts and representations contained in, certificates of the officers of the Company, Parent and Sub.
(h) From the date hereof through the Effective Time, no Material Adverse Effect on Parent shall have occurred, and there shall exist no fact, development or state of circumstances that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on RISCORP Parent.
5.2 Conditions to Parent's and Sub's Obligations. The obligations of Parent and Sub to complete the Merger are subject to the following conditions (any or a all of which may be waived by Parent to the extent permitted by law):
(a) The representations and warranties of the Company contained in this Agreement will be true and correct in all material respects (except that representations and warranties that are qualified by materiality, Material Adverse Effect or words of similar import shall be true and correct in all respects) on Acquiror/Guarantor, shall the Merger Date with the same effect as though made on that date (except that representations or warranties which relate expressly to a specified date or a specified period need only have been obtained without true and correct with regard to the imposition of any condition having specified date or period), and the Company will have delivered to Parent a Material Adverse Effect on RISCORP certificate dated that date and signed by the President or a Material Adverse Effect Vice President of the Company to that effect.
(b) The Company will have fulfilled in all material respects all its obligations under this Agreement required to have been fulfilled on Acquiror/Guarantoror before the Merger Date, and the Company will have delivered to Parent a certificate dated that date and signed by the President or a Vice President of the Company to that effect.
(c) No governmental authority order will have been entered by any Governmental Entity and be in force which invalidates this Agreement or other regulatory body (including any court restrains Parent or Sub from completing the transactions which are the subject of competent jurisdiction) shall this Agreement and no action will be pending against the Company, Parent or Sub relating to the transactions which are the subject of this Agreement which presents a reasonable likelihood of resulting in an award of damages against the Company, Parent or Sub which would have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal or in any way preventing or prohibiting a Material Adverse Effect after the Merger or the transactions contemplated by this Agreementon Parent and its subsidiaries taken as a whole.
(d) At The issuance of Parent Common Stock in the mailing date Merger will have been approved by the holders of at least a majority in voting power of the Proxy Statement outstanding shares of Parent Common Stock.
(e) The Merger will have been approved by the holders of at least two-thirds of the outstanding shares of Company Common Stock.
(f) The applicable waiting periods under the HSR Act will have expired or been terminated.
(g) All licenses and approvals from all Governmental Entities (including approvals of transfers of licenses and permits and of a change in control of the Company and its subsidiaries) which are necessary to enable the Company and its subsidiaries to continue to conduct their respective businesses after the Effective Time substantially as they are being conducted immediately before the Effective Time will have been obtained, and all required approvals and consents of Government Entities and other third parties necessary to complete the Merger shall have been obtained.
(h) Parent shall have received an opinion of Wachtell, Lipton, Xxxxx & Xxxx, special counsel to Parent, dated the Merger Date, to the effect that the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. In rendering its opinion, counsel may require, and rely upon facts and representations contained in, certificates of the officers of the Company, Parent and Sub.
(i) The waivers and consents contemplated by Section 4.11(a), Section 4.11(b) and Section 4.13 (in the case of clause (1) of Section 4.13, with respect to any Senior Vice Presidents who will be subject to tax as a result of Section 280G of the Code) shall have been obtained.
(1) Parent shall have received from the Company an audited balance sheet of Singer as of September 30, 2000, audited by Deloitte & Touche LLP, setting forth all assumptions and accounting policies related thereto, and such assumptions and accounting policies shall be consistently applied from prior periods, fairly presenting in all material respects the financial position of Singer as of such date, and prepared in accordance with GAAP, which audited balance sheet as of September 30, 2000 shall reflect a net worth of Singer, after elimination of the $56 million indebtedness to the Company and its subsidiaries existing at September 30, 2000 (the "Singer September 30 Net Worth"), of at least $1.00, (2) Parent shall be reasonably satisfied that there shall be sufficient and appropriate resources in place for Singer to fulfill its servicing commitments, (3) the consolidated debt of the Company and its subsidiaries (excluding C-BASS and Xxxxxxx) as of the Effective Time shall not exceed $250,000,000, (4) the Company shall have secured (for total consideration not to exceed $1,125,000 per year) and have in effect with respect to Asset Guaranty Insurance Co. $75,000,000 of soft capital financing, reinsurance or a similar facility which in any such case is sufficient to cause S&P to reaffirm to Asset Guaranty Insurance Co.'s AA rating, and (5) the Company shall not have made or be liable for any guarantees other than the $25,000,000 guarantee with respect to Xxxxxxx previously disclosed to Parent (it being understood that this subparagraph does not preclude subsidiaries from entering into suretyship or insurance contracts or giving guarantees in the ordinary course of their businesses consistent with past practice).
(k) All of the off-balance sheet financing with respect or relating to the assets of Singer (other than the Loan and Security Agreement, dated as of December 22, 1997, as amended, by and among Working Capital Management Co., L.P., The Industrial Bank of Japan, Singer Asset Loan Receivables L.L.C., and Singer Asset Finance Company, L.L.C., and related transaction documents (the "Omnivore facility")) shall remain in place on comparable terms and conditions after the Effective Time, provided, that the term of any such financing shall be extended to match the duration or maturity of the applicable assets of Singer or such assets shall be sold off on terms and conditions reasonably acceptable to Parent.
(l) From the date of hereof through the Stockholders' MeetingEffective Time, no Material Adverse Effect on the Proxy Statement Company shall not contain any untrue statement of a material have occurred, and there shall exist no fact, development or omit state of circumstances that, individually or in the aggregate, would reasonably be expected to state any material fact necessary in order to make have a Material Adverse Effect on the statements therein not misleadingCompany.
Appears in 1 contract
Samples: Merger Agreement (Enhance Financial Services Group Inc)
Conditions Precedent to Merger. 6.1. 5.1 Conditions Precedent to Each Party's ObligationsObligations of Parent, Mergerco and the Company. The respective obligations of each party Mergerco and the Company to effect the Merger shall be are subject to the satisfaction on or waiver (subject to applicable law) at or prior to the Closing Date Effective Time of each of the following conditions:
(a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% a majority of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds shares of the outstanding Company Common Stock entitled to vote thereon and the affirmative vote of the holders of a majority of the shares of Class A Common Stock.the Convertible Preferred Stock if such vote is required by applicable law;
(b) All consentsNo claim, authorizationsaction, orders suit, proceeding, arbitration or litigation has been threatened to be filed, has been filed or is proceeding which has arisen in whole or in part out of, or pertains to the approval of the Special Independent Committee and approvals identified on Schedule 5.6 required in connection with the executionBoard of Directors of any party to this Agreement and the transactions contemplated hereby, the negotiation, execution or delivery and performance of this Agreement, the failure to obtain which would prevent performance of obligations hereunder or the consummation of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.transactions contemplated hereby;
(c) No governmental authority or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any lawstatute, rule, regulation, executive order, decree, injunction or other order (whether temporaryof any kind shall have been enacted, preliminary issued, entered, promulgated or permanent) enforced by any Governmental Entity which prohibits the consummation of the Merger and which is then in effect at the Effective Time;
(d) The Company shall have received SEC clearance of the Transaction Statement and has Proxy Statement, all state securities laws and "Blue Sky" permits and other necessary consents, approvals and authorizations of Governmental Entities;
(e) Neither the recommendation of the Special Independent Committee and the Board of Directors that the Company's shareholders approve the Merger nor the opinion from Xxxxxx X. Xxxxx & Co. Incorporated to the effect that the Merger Consideration is fair to the Company's shareholders from a financial point of making illegal view, shall have been withdrawn or modified;
(f) The holders of all Options (other than Holdings), the per share exercise price of which is greater than the Merger Consideration, shall have entered into written agreements terminating such Options as set forth in Section 2.3 hereof;
(g) Any applicable waiting period under the HSR Act relating to the Merger shall have expired or been terminated;
(h) A majority of the shares of Common Stock voting on the Merger (other than shares held by Parent or any affiliates of Parent) shall have been voted to approve and adopt this Agreement and the Merger; and
(i) The Board of Directors of the Company as of the date of this Agreement shall have received an agreement from British Aerospace plc, in a form reasonably satisfactory to the Special Independent Committee, agreeing to cause the Surviving Corporation to comply with the provisions of Section 8.2 hereof.
5.2 Conditions to the Obligations of Parent and Mergerco. The obligations of Parent and Mergerco to effect the Merger are subject to the satisfaction or waiver (subject to applicable law) at or prior to the Effective Time of each of the following conditions:
(a) The Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date, the representations and warranties of the Company contained in this Agreement and in any way preventing certificate or prohibiting other writing delivered by the Company pursuant hereto shall be true in all material respects at and as of the Closing Date as if made at and as of such time and Mergerco shall have received a certificate signed by the chief executive officer of the Company to the foregoing effect;
(b) From and after the date hereof, the Company shall carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, there shall not be any adverse change to the Company's business, operations or financial condition which has resulted in a Material Adverse Effect with respect to the Company;
(c) There shall not be instituted or pending any action or proceeding by any government or governmental authority or agency, domestic or foreign, or by any other Person, domestic or foreign, before any court or governmental authority or agency, domestic or foreign, (i) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger or seeking to obtain material damages or otherwise directly or indirectly relating to the transactions contemplated by this Agreement., (ii) seeking to restrain or prohibit Parent's or Mergerco's ownership or operation (or that of Parent's respective Subsidiaries or affiliates) of all or any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries or affiliates, taken as a whole, or to compel Parent or Mergerco or any of their Subsidiaries or affiliates to dispose of or hold separate all or any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or of Parent and its Subsidiaries, taken as a whole or any of their respective affiliates, (iii) (except for the Special Security Agreement among the Company, Parent, British Aerospace plc and the United States Department of Defense as it exists on the date hereof,) seeking to impose or confirm material limitations on the ability of Parent or Mergerco or any of their Subsidiaries or affiliates to effectively control the business or operations of the Company and its Subsidiaries, taken as a whole, or effectively to exercise full rights of ownership of the shares of Common Stock, including, without limitation, the right to vote any shares of Common Stock acquired or owned by Mergerco or any of its Subsidiaries or affiliates on all matters properly presented to the Company's shareholders, or (iv) seeking to require divestiture by Parent or Mergerco or any of their Subsidiaries or affiliates of any shares of Common Stock, or (v) that otherwise is likely to materially adversely affect the Company and its Subsidiaries, taken as a whole, or Mergerco, Parent or their respective Subsidiaries or affiliates; and no court, arbitrator or governmental body, agency or official shall have issued any judgment, order, decree or injunction, and there shall not be any statute, rule or regulation, that, in the sole judgment of the Mergerco, is likely, directly or indirectly, to result in any of the consequences referred to in the preceding clauses (i) through (v);
(d) At the mailing date Parent and Mergerco shall have received a copy of the Proxy Statement Report of Independent Accountants, without qualification, from Coopers & Xxxxxxx LLP, the Company's independent accountants, with respect to the audited consolidated financial statements of the Company for the fiscal year ended December 31, 1996; and
(e) Parent and Mergerco shall have received all documents it may reasonably request relating to the existence of the Company and the date Subsidiaries and the authority of the Stockholders' MeetingCompany for this Agreement, all in form and substance satisfactory to Parent and Mergerco.
5.3 Conditions to the Obligations of the Company. The obligation of the Company to effect the Merger are subject to the satisfaction or waiver (subject to applicable law) at or prior to the Effective Time of each of the following conditions:
(a) Parent and Mergerco shall have performed in all material respects all of their respective obligations hereunder required to be performed by either of them at or prior to the Closing Date, the Proxy Statement representations and warranties of Parent and Mergerco contained in this Agreement and in any certificate or other writing delivered by the Company pursuant hereto shall be true in all material respects at and as of the Closing Date as if made at and as of such time and the Company shall have received a certificate signed by the chief executive officer of each of Mergerco and Parent to the foregoing effect;
(b) There shall not contain be instituted or pending any untrue statement of a material factaction or proceeding by any government or governmental authority or agency, domestic or foreign, or omit to state by any material fact necessary in order other Person, domestic or foreign, before any court or governmental authority or agency, domestic or foreign, challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the statements therein not misleadingconsummation of the Merger or seeking to obtain material damages or otherwise directly or indirectly relating to the transactions contemplated by this Agreement; and
(c) The Company shall have received all documents it may reasonably request relating to the existence of Parent and Mergerco and the authority of Parent and Mergerco for this Agreement, all in form and substance satisfactory to the Company.
Appears in 1 contract
Conditions Precedent to Merger. 6.1. Conditions to Each Party's Obligations5.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT, MERGERCO AND THE COMPANY. The respective obligations of each party Mergerco and the Company to effect the Merger shall be are subject to the satisfaction on or waiver (subject to applicable law) at or prior to the Closing Date Effective Time of each of the following conditions:
(a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% a majority of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds shares of the outstanding Company Common Stock entitled to vote thereon and the affirmative vote of the holders of a majority of the shares of Class A Common Stock.the Convertible Preferred Stock if such vote is required by applicable law;
(b) All consentsNo claim, authorizationsaction, orders suit, proceeding, arbitration or litigation has been threatened to be filed, has been filed or is proceeding which has arisen in whole or in part out of, or pertains to the approval of the Special Independent Committee and approvals identified on Schedule 5.6 required in connection with the executionBoard of Directors of any party to this Agreement and the transactions contemplated hereby, the negotiation, execution or delivery and performance of this Agreement, the failure to obtain which would prevent performance of obligations hereunder or the consummation of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.transactions contemplated hereby;
(c) No governmental authority or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any lawstatute, rule, regulation, executive order, decree, injunction or other order (whether temporaryof any kind shall have been enacted, preliminary issued, entered, promulgated or permanent) enforced by any Governmental Entity which prohibits the consummation of the Merger and which is then in effect and has at the effect of making illegal or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreement.Effective Time;
(d) At the mailing date The Company shall have received SEC clearance of the Proxy Transaction Statement and Proxy Statement, all state securities laws and "Blue Sky" permits and other necessary consents, approvals and authorizations of Governmental Entities;
(e) Neither the recommendation of the Special Independent Committee and the Board of Directors that the Company's shareholders approve the Merger nor the opinion from Robert W. Baird & Co. Incorporated to the effect that xxx Xxxxxx Xxxsideration is fair to the Company's shareholders from a financial point of view, shall have been withdrawn or modified;
(f) The holders of all Options (other than Holdings), the per share exercise price of which is greater than the Merger Consideration, shall have entered into written agreements terminating such Options as set forth in Section 2.3 hereof;
(g) Any applicable waiting period under the HSR Act relating to the Merger shall have expired or been terminated;
(h) A majority of the shares of Common Stock voting on the Merger (other than shares held by Parent or any affiliates of Parent) shall have been voted to approve and adopt this Agreement and the Merger; and
(i) The Board of Directors of the Company as of the date of this Agreement shall have received an agreement from British Aerospace plc, in a form reasonably satisfactory to the Stockholders' MeetingSpecial Independent Committee, agreeing to cause the Proxy Statement shall not contain any untrue statement Surviving Corporation to comply with the provisions of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleadingSection 8.2 hereof.
Appears in 1 contract
Samples: Merger Agreement (British Aerospace Public LTD Co Et Al)
Conditions Precedent to Merger. 6.1. Section 7.1 Mutual Conditions to Each Party's ObligationsClosing. The respective obligations of each party to effect consummate the Merger transactions contemplated by this Agreement shall be subject to the satisfaction on fulfillment at or prior to the Closing Date Closing, of each of the following conditions:
(a) This Agreement shall have been adopted by the stockholders of the Company by the Requisite Stockholder Vote in accordance with the Company's certificate of incorporation and the DGCL;
(i) Any waiting period (and any extension thereof) applicable to the Merger under the HSR Act shall have been terminated or shall have expired and (ii) all consents, approvals and authorizations of Governmental Authorities set forth on Schedule 7.1 shall have been obtained; and
(c) No temporary restraining order, preliminary or permanent injunction or other order issued by any Governmental Authority of competent jurisdiction which prohibits, restrains or renders illegal the consummation of the Merger shall have been approved be in effect.
Section 7.2 Conditions to Obligations of Parent and adopted Merger Sub. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement shall be further subject to the affirmative vote satisfaction or consent waiver at or prior to the Closing, of each of the holders of at least following conditions:
(a) (i) 80% The representations and warranties of the Voting Stock Company set forth in Sections 4.2, 4.5(a), 4.21 and 4.24 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of such date (unless any such 56 representation or warranty is made only as defined of a specific date, in RISCORP's Articles which event such representation or warranty shall be true and correct in all material respects only as of Incorporationsuch specific date) and (ii) two-thirds the other representations and warranties of the outstanding shares Company set forth in this Agreement (disregarding all qualifications and exceptions contained therein regarding materiality or a Material Adverse Effect) shall be true and correct as of Class A Common Stock.
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance date of this AgreementAgreement and as of the Closing Date as though made on and as of such date, except, in the case of this clause (ii), as contemplated by this Agreement or where the failure of any such representation or warranty to obtain which be so true and correct would prevent the consummation of the Merger or not have a Material Adverse Effect on RISCORP (unless any such representation or warranty is made only as of a specific date, in which event such representation or warranty shall be true and correct only as of such specific date, except as contemplated by this Agreement or where the failure of any such representation or warranty to be so true and correct would not have a Material Adverse Effect on Acquiror/Guarantor, Effect);
(b) The Company shall have been obtained without performed in all material respects the imposition of any condition having a Material Adverse Effect on RISCORP obligations, and complied in all material respects with the agreements and covenants, required to be performed by or a Material Adverse Effect on Acquiror/Guarantor.complied with by it under this Agreementat or prior to th e Closing Date; and
(c) No governmental authority or other regulatory body (including any court of competent jurisdiction) Parent shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, received a certificate of an executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreement.
(d) At the mailing date officer of the Proxy Statement Company, certifying that the conditions set forth in Sections 7.2(a) and the date of the Stockholders' Meeting, the Proxy Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading(b) have been satisfied.
Appears in 1 contract
Conditions Precedent to Merger. 6.1. 6.1 Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions:
(a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds a majority of the outstanding shares of Class A Company Common Stock.
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 of (or filings or registrations with) any governmental authority or other regulatory body required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have a Material Adverse Effect on RISCORP Company or a Material Adverse Effect on Acquiror/GuarantorParent, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP Company or a Material Adverse Effect on Acquiror/GuarantorParent.
(c) All authorizations, consents, waivers and approvals from parties to contracts or other agreements to which any of Company or Parent (or their respective subsidiaries) is a party, or by which either is bound, as may be required to be obtained by them in connection with the performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have, individually or in the aggregate, a Material Adverse Effect on Company or, individually or in the aggregate, a Material Adverse Effect on Parent, shall have been obtained.
(d) Early termination shall have been granted or applicable waiting periods shall have expired under the HSR Act.
(e) No governmental authority or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal illegal, materially restricting or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreement.
(df) At The Registration Statement shall have become effective under the mailing date Securities Act and no stop order suspending the effectiveness of the Proxy Registration Statement shall be in effect and no proceedings for such purpose, or under the date proxy rules of the Stockholders' Meeting, SEC pursuant to the Proxy Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading.Exchange
Appears in 1 contract
Samples: Merger Agreement (Budget Group Inc)
Conditions Precedent to Merger. 6.1. 9.1 Conditions to Each Party's ObligationsObligation of each Party to Effect the Merger. The ----------------------------------------------------------- respective obligations of each Parent, Target, any Target Shareholders party hereto and Merger Sub to effect the Merger shall be subject to the satisfaction on or waiver at or prior to the Closing Date of each of the following conditions:
(a) This this Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent shareholders of Target in the holders manner required under the VSCA and the articles of at least (i) 80% incorporation and bylaws of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds of the outstanding shares of Class A Common Stock.Target;
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.
(c) No governmental authority or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any lawno statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) which is then shall have been enacted, entered, promulgated or enforced by any Governmental Entity of competent jurisdiction and no other legal restraint or prohibition shall be in effect which prohibits, restrains, enjoins or restricts the 50 consummation of the Merger; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted;
(c) all filings required to be made prior to the Closing by any party or any of its respective Subsidiaries with, and has all consents, approvals and authorizations required to be obtained prior to the effect Closing by any party or any of making illegal or its respective Subsidiaries from, any Governmental Entity in any way preventing or prohibiting connection with the Merger or execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement.hereby shall have been made or obtained, except where the failure to obtain such consents is not reasonably likely to have a Material Adverse Effect on Parent or a Material Adverse Effect on any Target Shareholder and could not reasonably be expected to subject the parties, any Target Shareholder or their Affiliates or any directors, trustees or officers of any of the foregoing to the risk of criminal liability; and
(d) At the mailing date all consents or approvals of all Persons (other than Governmental Entities) required for or in connection with or as a result of the Proxy Statement execution, delivery and performance of this Agreement and the date consummation of the Stockholders' Meetingtransactions contemplated hereby shall have been obtained and shall be in full force and effect, except for those the Proxy Statement failure of which to obtain would not have a Material Adverse Effect on Parent, Target or any Target Shareholder; provided that the failure to obtain any of the consents or approvals listed on Section 4.3 of the Target Disclosure Schedule shall not contain any untrue statement be deemed to be a failure of a material fact, this condition to the obligations of Target or omit the Target Shareholders to state any material fact necessary in order to make effect the statements therein not misleadingMerger.
Appears in 1 contract
Samples: Merger Agreement (Interpore International Inc /De/)
Conditions Precedent to Merger. 6.1. Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger shall not be subject to the satisfaction on or prior to the Closing Date of consummated unless each of the following conditions:conditions shall have been satisfied to the satisfaction of the Agent and the Required Banks (or waived in the sole and absolute discretion of the Agent and the Required Banks):
(ai) This The Merger is to be consummated in a manner satisfactory to the Agent and the Banks and their counsel and the Agent shall have received a copy of the ITI Merger Agreement and each of the documents to be executed and delivered in connection with the Merger, each of which shall be in form and substance reasonably satisfactory to the Agent.
(ii) ITI shall have assumed, in a manner reasonably satisfactory to the Agent, all of the Company's liabilities and obligations, including all those arising under or in any way connected to this Credit Agreement.
(iii) The Banks shall be reasonably satisfied with the corporate and legal structure and capitalization of ITI, both prior and after giving effect to the Merger, including, without limitation, the charter and bylaws and each agreement or instrument relating thereto.
(iv) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental or regulatory agency or authority that (i) could reasonably be expected to (A) have a material adverse effect on the business, condition (financial or otherwise), operations, performance, properties or prospects of the Company or ITI; (B) adversely affect the ability of the Company to perform its obligations under this Credit Agreement or any of the Basic Documents or (C) adversely affect the rights and remedies of the Agent and the Banks under this Credit Agreement or any of the Basic Documents or (ii) purports to adversely affect any aspect of the Facility (collectively, a "Merger Material Adverse Effect"); and there shall have been no material adverse change in the status, or financial effect on the Company.
(v) ITI shall have complied with any applicable state takeover law and any applicable supermajority charter provisions and all governmental (including without limitation the United States Securities and Exchange Commission) and third party consents and approvals necessary in connection with each aspect of the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least obtained (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds of the outstanding shares of Class A Common Stock.
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP conditions that are not acceptable to the Banks) and shall remain in effect; all applicable waiting periods shall have expired without any adverse action being taken by any competent authority; and no law or a Material Adverse Effect on Acquiror/Guarantorregulation shall be applicable in the judgment of the Banks that restrains, prevents or imposes material adverse conditions upon any aspect of the Facility or the Merger.
(cvi) No governmental authority or other regulatory body (including any court of competent jurisdiction) The Banks shall have enactedreceived all additional financial, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or business and other order information regarding ITI and its subsidiaries as they shall have reasonably requested.
(whether temporary, preliminary or permanentvii) which is then in effect The Banks shall have received (i) satisfactory opinions of counsel for the Company and has the effect of making illegal or in any way preventing or prohibiting the Merger or ITI as to the transactions contemplated by this Agreementthe Merger and (ii) such corporate resolutions, certificates and other documents as the Banks shall reasonably request.
(dviii) At The Company shall have delivered to the mailing date Agent and each Bank, not less than 10 days prior to the consummation of such Merger, a certificate of a financial officer of the Proxy Statement Company and ITI, in all respects reasonably satisfactory to the Agent and dated the date of such consummation, attaching a pro-forma compliance certificate (in a format satisfactory to the Stockholders' MeetingAgent) evidencing compliance with all financial covenants (as the same may be amended from time to time) after giving effect to such Merger and based on the most recent financial statements delivered to the Administrative Agent pursuant to Section 8.01 of the Credit Agreement; provided, that, as to such financial covenants (and any other financial covenants now or hereafter applying to the Proxy Statement facilities described in the loan documents), all of such covenants shall be deemed amended to require compliance as to New Empire with ITI and (B) copies of the purchase or merger agreement or any other material documents executed in connection with the Merger..
(ix) The Agent and the Banks shall be reasonably satisfied with their legal due diligence concerning ITI, its subsidiaries, affiliates, officers and directors.
(x) After giving effect to the Merger, and at all times thereafter, Xxxxxx Xxxx and Xxxxxx Xxxx will beneficially own not contain less than 42% of the issued and outstanding capital stock of New Empire and will have full voting rights with respect to not less than 51% of the issued and outstanding voting stock of New Empire.
(xi) The Agent shall have been provided the results of lien, litigation and judgment searches with respect to ITI and the results thereof shall disclose no such liens, judgment or litigation and upon consummation of the Merger, New Empire shall have executed and delivered to the Agent Uniform Commercial Code financing statements adequately describing the Security and appropriate for filing in the state where new Empire's chief executive office is located and in each other state where any untrue statement inventory of a material fact, New Empire is or omit to state any material fact necessary may be located. New Empire shall execute all documentation reasonably requested by the Agent in order to make grant the statements Agent, for the ratable benefit of the Banks, a first priority perfected security interest in (i) all personal property and fixtures of New Empire, (ii) all marine and credit insurance in favor of New Empire, (iii) a key man life insurance policy in the amount of $2,000,000 owned by New Empire on the life of Xxxxxx Xxxx, (iv) 65% of New Empire's and each Guarantor's direct or indirect ownership interests in all material Foreign Subsidiaries of New Empire and (v) all intercompany debt. Furthermore, New Empire will (A) grant the Banks a negative pledge on all assets, tangible and intangible, and property of New Empire and its Subsidiaries and (B) agree not to grant any other third party any such negative pledge.
(xii) Neither the Company nor ITI has incurred any additional indebtedness to finance, or otherwise in connection with such Merger, whether in the form of seller notes, third party indebtedness or otherwise.
(xiii) There shall exist no Default or Event of Default and the representations and warranties of the Company and New Empire (after it has assumed all of the Company's liabilities and obligations) and each of its Subsidiaries therein shall be true and correct in all material respects immediately prior to, and after giving effect to, the Merger.
(xiv) The Agent shall have received such other information or documents as it shall have reasonably requested in connection with such Merger.
(xv) The Merger shall have been consummated in accordance with the ITI Merger Agreement, without any waiver or amendment of any material term or condition therein not misleadingconsented to by the Agent and in compliance with all applicable laws and all necessary approvals, except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Conditions Precedent to Merger. 6.1. Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger and the other transactions contemplated by this Agreement shall be subject to the satisfaction on at or prior to the Closing Date of each of the following conditions:, any or all of which may be waived, in whole or in part (and to the extent necessary, the parties have received the required consents from their respective shareholders to take such actions):
(a) This Agreement Cardax shall have reserved for issuance of the Merger Shares and authorized the issuance of the Cardax Substitute Warrants and the shares of Cardax Common Stock issuable upon the exercise of the Cardax Substitute Warrants and the Merger shall have been approved and adopted Shares by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds of the outstanding shares of Class A Common Stock.all required corporate action;
(b) All consentsThe parties have received all consents necessary to effectuate the Merger, authorizations, orders including any consents required by governmental authorities and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation consent of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without stockholders and board of directors of Holdings and the imposition consent of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.the board of directors of Cardax;
(c) No governmental authority or other regulatory body A draft of a Current Report on Form 8-K that will be filed with the SEC (including any court of competent jurisdictionas defined below) on the Closing Date shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then be true and correct in effect and has the effect of making illegal or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreement.all material respects;
(d) At the mailing date The registration of the Proxy Statement Merger Shares under the Securities Act of 1933, as amended (the “Securities Act”) shall be effective;
(e) Holdings shall have provided all information, documents, agreements and instruments as from time to time requested by Cardax;
(f) Cardax shall have provided all information, documents, agreements and instruments as from time to time requested by Holdings;
(g) Holdings shall have certified that the list provided to Cardax on or prior to the date of this Agreement that describes each of the Stockholders' Meeting, Persons that hold Holdings Warrants and the Proxy Statement rights under the Holdings Warrants is true and complete in all material respects;
(h) Holdings shall not contain any untrue statement of a material fact, or omit to state have taken any material fact necessary action or engaged in order any material transaction or agreed to make enter into any such transaction;
(i) The financial position of Holdings as of March 31, 2014 shall be a provided to Cardax on or prior to the statements therein date of this Agreement and the liabilities and obligations of Holdings of any kind or nature, including any such that are contingent, conditional or unmatured, shall not misleadinghave increased by more than $1,000 since March 31, 2014 (or such other amount as may be accepted by Cardax);
(j) The books and records of Holdings shall have been maintained in accordance with generally accepted accounting principles (“GAAP”) and be truly and accurately record and summarize all transactions of Holdings in accordance with GAAP; and
(k) The assets, liabilities, transactions and other corporate events of Holdings and matters since February 7, 2014 shall be in all material respects as described to Cardax on the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Cardax, Inc.)
Conditions Precedent to Merger. 6.1. Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger and the other transactions contemplated by this Agreement shall be subject to the satisfaction on at or prior to the Closing Date of each of the following conditions:, any or all of which may be waived, in whole or in part (and to the extent necessary, the parties have received the required consents from their respective shareholders to take such actions):
(a) This Agreement Cardax shall have reserved for issuance of the Merger Shares and authorized the issuance of the Cardax Substitute Warrants and the Merger shall have been approved and adopted by shares of Cardax Common Stock issuable upon the affirmative vote or consent exercise of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds of the outstanding shares of Class A Common Stock.Cardax Substitute Warrants by all required corporate action;
(b) All consentsThe parties have received all consents necessary to effectuate the Merger, authorizations, orders including any consents required by governmental authorities and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation consent of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without stockholders and board of directors of Holdings and the imposition consent of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.the board of directors of Cardax;
(c) No governmental authority or other regulatory body A draft of a Current Report on Form 8-K that will be filed with the SEC (including any court of competent jurisdictionas defined below) on the Closing Date shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then be true and correct in effect and has the effect of making illegal or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreement.all material respects;
(d) At the mailing date The registration of the Proxy Statement Merger Shares under the Securities Act of 1933, as amended (the “Securities Act”) shall be effective;
(e) Holdings shall have provided all information, documents, agreements and instruments as from time to time requested by Cardax;
(f) Cardax shall have provided all information, documents, agreements and instruments as from time to time requested by Holdings;
(g) Holdings shall have certified that the list provided to Cardax on or prior to the date of this Agreement that describes each of the Stockholders' Meeting, Persons that hold Holdings Warrants and the Proxy Statement rights under the Holdings Warrants is true and complete in all material respects;
(h) Holdings shall not contain any untrue statement of a material fact, or omit to state have taken any material fact necessary action or engaged in order any material transaction or agreed to make enter into any such transaction;
(i) The financial position of Holdings as of September 30, 2015 shall be a provided to Cardax on or prior to the statements therein date of this Agreement and the liabilities and obligations of Holdings of any kind or nature, including any such that are contingent, conditional or unmatured, shall not misleadinghave increased by more than $1,000 since September 30, 2015 (or such other amount as may be accepted by Cardax);
(j) The books and records of Holdings shall have been maintained in accordance with generally accepted accounting principles (“GAAP”) and be truly and accurately record and summarize all transactions of Holdings in accordance with GAAP; and
(k) The assets, liabilities, transactions and other corporate events of Holdings and matters since February 7, 2014 shall be in all material respects as described to Cardax on the date of this Agreement.
Appears in 1 contract
Conditions Precedent to Merger. 6.1. Conditions The consent and waivers set forth in Section 1 hereof with respect to Each Party's Obligations. The respective obligations the Merger, are contingent upon receipt by Bank of the following, each party to effect the Merger of which shall be subject in form and content satisfactory to the satisfaction on or prior to the Closing Date of each of the following conditionsBank:
(a) This Agreement and A fully executed surety agreement of Public Shell (the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds of the outstanding shares of Class A Common Stock.“Public Shell Guaranty”);
(b) All A fully executed securities pledge agreement executed by Public Shell (the “Public Shell Securities Pledge”) along with the original stock certificates of Merger Shell and executed blank stock powers;
(c) Copy of the fully executed authorizing resolutions regarding the Merger, certified to be true and correct by the Secretary of Infologix and the Merger Shell;
(d) Evidence that Infologix is the corporation surviving the Merger and that its state of formation after the Merger is the State of Delaware;
(e) A copy of the articles of merger and the plan of merger along with evidence that such document has been delivered to the applicable Secretary of State for filing, with a filed copy of such articles of merger and plan of merger, certified to be true and correct by the applicable Secretary of State, within thirty (30) days after the consummation of the Merger;
(f) Copy of the by-laws of the company surviving the Merger, certified to be true and correct by the Secretary of such company;
(g) Opinion of counsel to Infologix regarding the Merger, which shall include, without limitation, the following opinions:
(i) The Merger has been completed in accordance with all applicable laws and all necessary consents, authorizationsapprovals and/or authorizations required in connection with the Merger have been obtained and are in full force and effect.
(ii) After the consummation of the Merger, orders Infologix retains all assets, properties, rights and remedies of Infologix prior to the consummation of the Merger, including, without limitation, all assets of Infologix previously granted, pledged or assigned by Infologix to Bank as Collateral and Infologix is the sole legal and beneficial owner of such assets, properties, rights and remedies.
(iii) After the consummation of the Merger, the debts, liabilities and duties of Infologix prior to the consummation of the Merger shall attach to and be the responsibility of Infologix, including, without limitation, all sums advanced and outstanding under the Loan Agreement or any of the other Loan Documents and all other obligations and covenants of Infologix prior to the consummation of the Merger to Bank under the Loan Agreement or any of the other Loan Documents.
(iv) Bank continues to have a valid, continuing and enforceable perfected security interests in all of Infologix’s right, title and interest in, to and under the Collateral.
(v) After the consummation of the Merger, Infologix is a corporation validly existing and in good standing under the laws of the State of Delaware and has full power and authority to execute, deliver and comply with the Loan Documents and to carry on its business as it is now being conducted.
(vi) All necessary consents, approvals identified on Schedule 5.6 and/or authorizations required in connection with the execution, delivery deliver and performance by Infologix of this Agreement, the failure to obtain which would prevent Loan Documents after the consummation of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantorand are in full force and effect.
(ch) No governmental authority or Such other regulatory body (including any court of competent jurisdiction) shall have enacteditems as Bank may reasonably request, issuedincluding, promulgatedwithout limitation, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreementsuch guaranties as Bank may require.
(d) At the mailing date of the Proxy Statement and the date of the Stockholders' Meeting, the Proxy Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading.
Appears in 1 contract
Conditions Precedent to Merger. 6.1. 6.1 Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions:
(a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds a majority of the outstanding shares of Class Company Common Stock and the affirmative vote or consent of the holders of at least two-thirds (2/3) of the outstanding of Series A Common StockShares.
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 of (or filings or registrations with) any governmental authority or other regulatory body required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have a Material Adverse Effect on RISCORP Company or a Material Adverse Effect on Acquiror/GuarantorParent, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP Company or a Material Adverse Effect on Acquiror/GuarantorParent.
(c) Early termination shall have been granted or applicable waiting periods shall have expired under the HSR Act.
(d) No governmental authority or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal illegal, materially restricting or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreement.
(de) At The Registration Statement shall have become effective under the mailing date Securities Act and no stop order suspending the effectiveness of the Proxy Registration Statement shall be in effect and no proceedings for such purpose, or under the date proxy rules of the StockholdersSEC pursuant to the Exchange Act and with respect to the transactions contemplated hereby, shall be pending before or threatened by the SEC.
(f) Parent and Company each shall have obtained a written opinion of King & Spalding, counsel to Parent, reasonably acceptable to Parent and Company (the "Tax Opinion"), to the effect that the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code and that the exchange in the Merger of Parent Common Stock for Company Common Stock will not give rise to gain or loss to the shareholders of Company with respect to such exchange (except to the extent of any cash paid in lieu of fractional shares or Dissenting Shares). The Tax Opinion will be addressed to each of Parent and Company. In rendering the Tax Opinion, such counsel shall be entitled to rely on the accuracy of facts set forth in the officers' Meetingcertificates described in Section 5.13.
(g) The shares of Parent Common Stock to be issued pursuant to this Agreement and pursuant to the Company Stock Options shall have been authorized for listing on the NYSE, subject to official notice of issuance.
(h) The sale of Parent Common Stock resulting from the Proxy Statement Merger shall have been qualified or registered with the appropriate state securities law or "blue sky" regulatory authorities of all States in which qualification or registration is required under State securities laws and such qualifications or registrations shall not contain any untrue statement of a material fact, have been suspended or omit to state any material fact necessary in order to make the statements therein not misleadingrevoked.
Appears in 1 contract
Conditions Precedent to Merger. 6.1. Section 6.1 Conditions to Each Party's ObligationsObligations of PFGI and Provident Bank. The respective obligations of each party PFGI and Provident Bank to effect the Merger Mergers shall be subject to the satisfaction on (or waiver by PFGI and Provident Bank) prior to or on the Closing Date of each of the following conditions:
(a) This The representations and warranties made by Fidelity and its Subsidiaries in this Agreement shall be true and the Merger shall have been approved correct on and adopted by the affirmative vote or consent as of the holders of at least (i) 80% Closing Date with the same effect as though such representations and warranties had been made or given on and as of the Voting Stock Closing Date (except for any such representations and warranties made only as defined in RISCORP's Articles of Incorporation) a specified date which shall be true and (ii) two-thirds correct as of the outstanding shares of Class A Common Stock.such date);
(b) All consents, authorizations, orders Fidelity and approvals identified its Subsidiaries shall have performed and complied in all material respects with all of its obligations and agreements required to be performed on Schedule 5.6 required in connection with or prior to the execution, delivery and performance of Closing Date under this Agreement, including, but not limited to, obtaining the failure to obtain which would prevent the consummation approvals of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.Fidelity's officers and directors as provided in Section 4.3 hereof;
(c) No governmental authority temporary restraining order, preliminary or permanent injunction or other regulatory body (including order issued by any court of competent jurisdictionjurisdiction or other legal restraint or prohibition (an "Injunction") preventing the consummation of the Mergers shall have be in effect, nor shall any proceeding by any Regulatory Agency or other person seeking any of the foregoing be pending. There shall not be any action taken, or any statute, rule, regulation or order enacted, issued, promulgatedentered, enforced or entered deemed applicable to the Mergers which makes the consummation of the Mergers illegal;
(d) All necessary regulatory approvals, consents, authorizations and other approvals, including the requisite approval of this Agreement and the Mergers by the shareholders of each party hereto, required by law or any lawRegulatory Agency for consummation of the Mergers shall have been obtained and all waiting periods required by law shall have expired, ruleand no regulatory approval shall have imposed any condition, regulation, executive order, decree, injunction requirement or other order (whether temporary, preliminary restriction which the Board of Directors of PFGI reasonably determines in good faith would so materially adversely impact the economic or permanent) which is then in effect and has the effect business benefits of making illegal or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreement.Agreement to PFGI and its shareholders as to render inadvisable the consummation of the Mergers (any such condition, requirement or restriction, a "Burdensome Condition");
(de) At PFGI and Provident Bank shall have received all documents required by this Agreement to be received, on or prior to the mailing date Closing Date, all in form and substance reasonably satisfactory to PFGI;
(f) The Mergers shall qualify as a "pooling of interests" for accounting purposes if closed and consummated in accordance with this Agreement and PFGI and Provident Bank shall have received an opinion letter, dated as of the Proxy Statement Closing Date, from Ernst & Young, LLP, its independent public accountants, to such effect;
(g) As soon as practicable after the execution of this Agreement, PFGI and Provident Bank shall have received an executed Pooling Affiliate Letter in the date form of the Stockholders' Meeting, the Proxy Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading.Exhibit 6.1
Appears in 1 contract
Conditions Precedent to Merger. 6.1. Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger and the other transactions contemplated by this Agreement shall be subject to the satisfaction on at or prior to the Closing Date of the following conditions, any or all of which may be waived, in whole or in part (and to the extent necessary, the parties have received the required consents from their respective shareholders to take such actions):
(a) PRCD shall have amended its certificate of incorporation so that it is amended and restated in the form attached hereto as Exhibit I (the “Effective Time PRCD Charter”);
(b) PRCD shall have amended its bylaws so that it is amended and restated in the form attached hereto as Exhibit II (the “Effective Time PRCD Bylaws”);
(c) The directors and officers of PRCD and TIGE shall have coverage under a directors and officers insurance policy that is reasonably acceptable to TIGE, which such policy shall be entered into on or immediately after the Effective Time, or under any other arrangement, which arrangement and coverage shall be acceptable to TIGE;
(d) PRCD shall divest all operations as reasonably requested by TIGE.
(e) The parties have received all consents necessary to effectuate the Merger, including any consents required by governmental authorities;
(f) A draft of a Current Report on Form 8-K that will be filed with the SEC (as defined below) on or promptly after the Closing Date shall be acceptable to TIGE, in its sole and absolute discretion;
(g) The Board of TIGE has approved resolutions authorizing the affirmative vote of all Holdings shares in favor of the adoption of this Agreement and the Merger;
(h) TIGE shall have delivered to PRCD and PRCD Sub a certificate (the “TIGE Certificate”) to the effect that each of the following conditionsconditions is satisfied in all respects:
(ai) This Agreement TIGE and the Merger Holdings shall have been approved obtained (and adopted by the affirmative vote shall have provided copies thereof to PRCD) all waivers, permits, consents, approvals or consent other authorizations, and effected all of the holders registrations, filings and notices which are required on the part of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) TIGE and (ii) two-thirds of the outstanding shares of Class A Common Stock.
(b) All consentsHoldings, authorizationsrespectively, orders and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, except for any the failure of which to obtain which would prevent or effect does not, individually or in the consummation of the Merger or aggregate, have a Material Adverse Effect on RISCORP or a Material Adverse Effect material adverse effect on Acquiror/Guarantor, shall have been obtained without the imposition ability of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.
(c) No governmental authority or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal or in any way preventing or prohibiting the Merger or parties to consummate the transactions contemplated by this Agreement;
(ii) TIGE and Holdings shall have obtained all necessary board, shareholder and third party consents;
(iii) the representations and warranties of Holdings and TIGE set forth in this Agreement (when read without regard to any qualification as to materiality or Material Adverse Effect contained therein) shall be true and correct as of the date of this Agreement and shall be true and correct as of the Effective Time as though made as of the Effective Time (provided, however, that to the extent such representation and warranty expressly relates to an earlier date, such representation and warranty shall be true and correct as of such earlier date), except for any untrue or incorrect representation and warranty that, individually or in the aggregate, does not have a Material Adverse Effect or a material adverse effect on the ability of the parties to consummate the transactions contemplated by this Agreement;
(iv) TIGE and Holdings shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time;
(v) no action by any government or authority or legal proceedings shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect.
(di) At PRCD shall have delivered to TIGE a certificate (the mailing date “PRCD Certificate”) to the effect that each of the Proxy Statement following conditions is satisfied in all respects:
(i) PRCD and the date PRCD Sub shall have obtained (and shall have provided copies thereof to TIGE) all waivers, permits, consents, resolutions, approvals or other authorizations, and effected all of the Stockholders' Meetingregistrations, filings and notices which are required on the Proxy Statement shall not contain part of PRCD and PRCD Sub, respectively, except for any untrue statement the failure of which to obtain or effect does not, individually or in the aggregate, have a PRCD Material Adverse Effect or a material factadverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(ii) PRCD and PRCD Sub obtaining all necessary board, shareholder, and third party consents; and
(iii) no action by any government or authority or legal proceedings shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, or omit (ii) cause any of the transactions contemplated by this Agreement to state any material fact necessary be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in order effect; and.
(j) TIGE shall have received copies of documentation that is satisfactory to make it that evidences that 11,685,000 of PRCD Common Stock has been irrevocably tendered to the statements therein not misleadingtransfer agent of PRCD for cancellation in form and substance acceptable to TIGE.
Appears in 1 contract
Samples: Merger Agreement (Priced in Corp.)
Conditions Precedent to Merger. 6.1. Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger and the other transactions contemplated by this Agreement shall be subject to the satisfaction on at or prior to the Closing Date of each of the following conditions:, any or all of which may be waived, in whole or in part (and to the extent necessary, the parties have received the required consents from their respective shareholders to take such actions):
(a) This Agreement and the Merger PubCo shall have been approved amended its certificate of incorporation so that it is amended and adopted by restated in the affirmative vote or consent of form attached hereto as Exhibit II (the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation“Effective Time PubCo Charter”) and shall have consummated a stock dividend so that one share of PubCo Common Stock outstanding on the date of this Agreement will be equal to 4.4 shares (iior such other amount specified by Pharma prior to Closing Date and accepted by PubCo) two-thirds of PubCo Common Stock immediately after the outstanding shares of Class A Common Stock.Merger;
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, PubCo shall have been obtained without amended its bylaws so that it is amended and restated in the imposition of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.form attached hereto as Exhibit III (the “Effective Time PubCo Bylaws”);
(c) No governmental authority or other regulatory body (including any court of competent jurisdiction) PubCo shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order adopted the Equity Based Stock Incentive Plan (whether temporary, preliminary or permanentthe “PubCo Option Plan”) which is then in effect and has the effect form attached hereto as Exhibit IV reserving the number of making illegal or in any way preventing or prohibiting shares of Common Stock specified by Pharma prior to the Merger or the transactions contemplated by this AgreementClosing Date.
(d) At PubCo shall have purchased a directors and officers insurance policy that is reasonably acceptable to Holdings, which such policy shall be entered into on or immediately after the mailing date Effective Time;
(e) All of the Proxy Statement equity interests of Koffee Korner’s Inc. (Texas), a Texas corporation and wholly-owned subsidiary of PubCo, shall have been distributed or otherwise transferred and assigned to Nxxxxxx X’Xxxxx in a transaction reasonably acceptable to Holding that provides, inter alia, that there are no liabilities or obligations of any kind or nature (absolute, accrued, contingent or otherwise) other than those liabilities contemplated by the date PubCo books and records or otherwise incurred in the ordinary course of business that, in any case, are not more than $10,000 in the Stockholders' Meetingaggregate.
(f) The parties have received all consents necessary to effectuate the Merger, the Proxy Statement including any consents required by governmental authorities;
(g) The fiscal year-end of PubCo shall not contain any untrue statement have been changed to December 31; and
(h) A draft of a material factCurrent Report on Form 8K that will be filed with the SEC (as defined below) on the Closing Date shall have been provided to Holdings and be acceptable to Holdings, or omit to state any material fact necessary in order to make the statements therein not misleadingits sole and absolute discretion.
Appears in 1 contract
Conditions Precedent to Merger. 6.1. 7.1 Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions:
(a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds a majority of the outstanding shares of Class A Company Common Stock.
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 of (or filings or registrations with) any governmental authority or other regulatory body required in connection with the execution, delivery and performance of this Agreement and the Distribution Agreement, the failure to obtain which would prevent the consummation of the Merger or the Spin-off or have a Material Adverse Effect on RISCORP Company or a Material Adverse Effect on Acquiror/GuarantorMerger Partner, shall have been obtained without the imposition of any condition having conditions which would have, individually or in the aggregate, a Material Adverse Effect on RISCORP Company or a Material Adverse Effect on Acquiror/GuarantorMerger Partner.
(c) All authorizations, consents, waivers and approvals from parties to contracts or other agreements to which any of Company or Merger Partner (or their respective Subsidiaries) is a party, or by which either is bound, as may be required to be obtained by them in connection with the performance of this Agreement and the Distribution Agreement, the failure to obtain which would prevent the consummation of the Merger or the Spin-off or have, individually or in the aggregate, a Material Adverse Effect on Company or, individually or in the aggregate, a Material Adverse Effect on Merger Partner, shall have been obtained.
(d) Early termination shall have been granted or applicable waiting periods shall have expired under the HSR Act.
(e) No governmental authority or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal illegal, materially restricting or in any way preventing or prohibiting the Merger Merger, the Spin-off or the transactions contemplated by this Agreement or the Distribution Agreement.
(df) The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose, or under the proxy rules of the SEC pursuant to the Exchange Act and with respect to the transactions contemplated hereby, shall be pending before or threatened by the SEC. At the effective date of the Registration Statement, the Registration Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading, and, at the mailing date of the Proxy Statement and the date of the Stockholders' Meeting, the Proxy Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading.
(g) The parties shall have received a private letter ruling from the IRS (the "Ruling") to the effect that (i) the Spin-off will qualify as a tax-free distribution within the meaning of Section 355 of the Code, (ii) the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code, (iii) the exchange in the Merger of Company Common Stock for Merger Partner Common Stock will not give rise to gain or loss for federal income tax purposes to the stockholders of Company with respect to such exchange (except to the extent of the cash received), and (iv) neither Company nor Sub will recognize gain or loss as a consequence of the Merger.
(h) The shares of Merger Partner Common Stock to be issued pursuant to this Agreement and pursuant to the Company Stock Options shall have been authorized for listing on the NYSE, subject to official notice of issuance.
(i) The Spin-off shall have been effected.
Appears in 1 contract
Samples: Merger Agreement (Providian Corp)
Conditions Precedent to Merger. 6.1. Conditions to Each Party's Obligations. (a) The respective obligations of each party to effect the Merger shall be and otherwise consummate the transactions contemplated by this Agreement are subject to the satisfaction on or (to the extent permitted by law) waiver by each of the parties at or prior to the Closing Date Effective Time, of each of the following conditions:
(a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds of the outstanding shares of Class A Common Stock.
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor.
(c) No governmental authority or other regulatory body (including any court of competent jurisdiction) applicable jurisdiction shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction law or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the Merger illegal or in any way otherwise preventing or prohibiting consummation of the Merger.
(ii) The shares of PubCo Common Stock to be issued in the Merger shall have been authorized for listing on the New York Stock Exchange (“NYSE”), subject to official notice of issuance.
(iii) The Partnership shall have received the affirmative vote or written consent of the holders of a majority of each of (i) the outstanding Class A Preferred Limited Partnership Interests, (ii) Preferred Limited Partnership Interests and (iii) the Common Interests (together, the “LP Approval”), and such approval shall remain in full force and effect.
(iv) The Partnership shall have received the affirmative vote or written consent of the requisite 1Ls (or other required consent or approval under the 1L Credit Facility) in respect of the 1L Assumption and Guarantee.
(v) The Amendment of the PIK Loan Agreement shall remain in effect and the PIK Loan Consideration Shares shall have been issued to the PIK Lenders entitled to such shares of PubCo Common Stock.
(b) The respective obligations of PubCo and Merger Sub to effect the Merger and to consummate the other transactions contemplated by this Agreement.Agreement are subject to the satisfaction or (to the extent permitted by law) waiver by Merger Sub, at or prior to the Effective Time, of the following additional conditions:
(di) At the mailing date of the Proxy Statement and Since the date of the Stockholders' Meetingthis Agreement, the Proxy Statement there shall not contain have been any untrue statement of event, change or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a material factadverse effect on the business, condition, results of operations, assets or omit to state any material fact necessary in order to make liabilities of the statements therein not misleadingPartnership.
Appears in 1 contract
Conditions Precedent to Merger. 6.1. 7.1 Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions:
(a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds a majority of the outstanding shares of Class A Company Common Stock.
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 of (or filings or registrations with) any governmental authority or other regulatory body required in connection with the execution, delivery and performance of this Agreement and the Distribution Agreement, the failure to obtain which would prevent the consummation of the Merger or the Spin-off or have a Material Adverse Effect on RISCORP Company or a Material Adverse Effect on Acquiror/GuarantorMerger Partner, shall have been obtained without the imposition of any condition having conditions which would have, individually or in the aggregate, a Material Adverse Effect on RISCORP Company or a Material Adverse Effect on Acquiror/GuarantorMerger Partner.
(c) All authorizations, consents, waivers and approvals from parties to contracts or other agreements to which any of Company or Merger Partner (or their respective Subsidiaries) is a party, or by which either is bound, as may be required to be obtained by them in connection with the performance of this Agreement and the Distribution Agreement, the failure to obtain which would prevent the consummation of the Merger or the Spin-off or have, individually or in the aggregate, a Material Adverse Effect on Company or, individually or in the aggregate, a Material Adverse Effect on Merger Partner, shall have been obtained.
(d) Early termination shall have been granted or applicable waiting periods shall have expired under the HSR Act.
(e) No governmental authority or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal illegal, materially restricting or in any way preventing or prohibiting the Merger Merger, the Spin-off or the transactions contemplated by this Agreement or the Distribution Agreement.
(df) The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose, or under the proxy rules of the SEC pursuant to the Exchange Act and with respect to the transactions contemplated hereby, shall be pending before or threatened by the SEC. At the effective date of the Registration Statement, the Registration Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading, and, at the mailing date of the Proxy Statement and the date of the Stockholders' Meeting, the Proxy Statement shall not contain any untrue statement of a material fact, or omit to state any material fact necessary in order to make the statements therein not misleading.
(g) The parties shall have received a private letter ruling from the IRS (the "Ruling") to the effect that (i) the Spin-off will qualify as a tax- free distribution within the meaning of Section 355 of the Code, (ii) the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code, (iii) the exchange in the Merger of Company Common Stock for Merger Partner Common Stock will not give rise to gain or loss for federal income tax purposes to the stockholders of Company with respect to such exchange (except to the extent of the cash received), and (iv) neither Company nor Sub will recognize gain or loss as a consequence of the Merger.
(h) The shares of Merger Partner Common Stock to be issued pursuant to this Agreement and pursuant to the Company Stock Options shall have been authorized for listing on the NYSE, subject to official notice of issuance.
(i) The Spin-off shall have been effected.
Appears in 1 contract
Samples: Plan and Agreement of Merger and Reorganization (Providian Bancorp Inc)
Conditions Precedent to Merger. 6.1. 5.1 Conditions to Each Partythe Company's Obligations. The respective obligations of each party the Company to effect complete the Merger shall be are subject to the satisfaction on or prior to the Closing Date of each of the following conditions:conditions (any or all of which may be waived by the Company):
(a) This The representations and warranties of Sema and Acquisition contained in this Agreement will, except as contemplated by this Agreement, be true and correct in all respects on the Merger shall Date (except that representations and warranties which relate expressly to a specified date or a specified period need only have been approved true and adopted by correct with regard to the affirmative vote specified date or consent of period) with the holders of at least same effect as though made on that date (except (i) 80% to the extent of failures of representations and warranties to be correct (without taking account of any limitation in a representation and warranty as to materiality or absence of a Material Adverse Effect) which do not in total have, and are not reasonably likely to have in total, a Material Adverse Effect after the Voting Stock (as defined in RISCORP's Articles of Incorporation) Merger on Sema, and (ii) two-thirds to the extent the representations and warranties are not true and correct at the Merger Date because of occurrences or conditions which are attributable to, or result directly from, the public announcement or the pendency of the Merger) and Sema will have delivered to the Company a certificate dated that date and signed by the principal executive officer or the principal financial officer of Sema to that effect.
(b) Sema and Acquisition will have fulfilled in all material respects all their obligations under this Agreement required to have been fulfilled on or before the Merger Date.
(c) Any waiting periods under the HSR Act, any applicable English or European Union competition laws, and any other applicable competition laws will have expired or been terminated.
(d) No order will have been entered by any court or governmental authority and be in force which invalidates this Agreement or restrains the Company from completing the transactions which are the subject of this Agreement
(e) The Merger will have been approved by the holders of a majority of the outstanding shares of Class A Company Common Stock.
(bf) All consents, authorizations, orders and approvals identified on Schedule 5.6 required in connection with the execution, delivery and performance of this Agreement, the failure to obtain The Sema Ordinary Shares which would prevent the consummation will be issued as a result of the Merger or have a Material Adverse Effect on RISCORP or a Material Adverse Effect on Acquiror/Guarantor, shall will have been obtained without authorized for listing on the imposition LSE and the Bourse in Paris, and the Sema ADS's which will be issued as a result of any condition having a Material Adverse Effect the Merger will have been authorized for listing on RISCORP the New York Stock Exchange or a Material Adverse Effect will be eligible for quotation on Acquiror/Guarantorthe Nasdaq National Market.
(cg) No governmental authority The Registration Statement will have become effective under the Securities Act, no stop order relating to the Registration Statement will have been entered, and no proceeding seeking a stop order relating to the Registration Statement will be pending.
(h) Sema will not have amended its Memorandum of Association or other regulatory body (including any court Articles of competent jurisdiction) shall have enactedAssociation, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal or in any way preventing or prohibiting the Merger or the transactions except as contemplated by this Agreement.
(i) Sema will not have split, combined or reclassified its issued shares.
(j) Two persons designated by the Board of Directors of the Company will have been elected to the Board of Directors of Sema, effective upon completion of the Merger.
(k) The Company will have received an opinion of Alstxx & Xird LLP to the effect that the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code 35 37 and that Sema, Acquisition and the Company each will be a party to a reorganization within the meaning of Section 368(b) of the Code.
(l) The Merger Date will be not later than September 30, 2000.
5.2 Conditions to Sema's and Acquisition's Obligations. The obligations of Sema and Acquisition to complete the Merger are subject to the following conditions (any or all of which may be waived by Sema):
(a) The representations and warranties of the Company contained in this Agreement will, except as contemplated by this Agreement, be true and correct in all respects on the Merger Date (except that representations and warranties which relate expressly to a specified date or a specified period need only have been true and correct with regard to the specified date or period) with the same effect as though made on that date (except (i) to the extent of failures of representations and warranties to be correct (without taking account of any limitation in a representation and warranty as to materiality or absence of a Material Adverse Effect) which do not in total have, and are not reasonably likely to have in total, a Material Adverse Effect after the Merger on the Surviving Corporation or Sema, or (ii) to the extent the representations and warranties are not true and correct at the Merger Date because of occurrences or conditions which are attributable to, or result directly from, the public announcement or the pendency of the Merger) and the Company will have delivered to Sema a certificate dated that date and signed by the principal executive officer or the principal financial officer of the Company to that effect.
(b) The Company will have fulfilled in all material respects all its obligations under this Agreement required to have been fulfilled on or before the Merger Date.
(c) Any waiting periods under the HSR Act, any applicable English or European Union competition laws or any other applicable competition laws will have expired or been terminated.
(d) At No order will have been entered by any court or governmental authority and be in force which invalidates this Agreement or restrains Sema or Acquisition from completing the mailing date transactions which are the subject of this Agreement, and no action will be pending against the Company, Sema or Acquisition relating to the transactions which are the subject of this Agreement which presents a reasonable likelihood of resulting in an award of damages or other relief against the Company, Sema or Acquisition which would have a Material Adverse Effect after the Merger on the Surviving Corporation or Sema.
(e) The acquisition of the Proxy Statement Company, the increase in Sema's authorized share capital which is necessary to permit the Merger Consideration to be issued and the date allotment of the Stockholdersrelevant Sema Ordinary Shares will have been approved by the holders of at least a majority of the Sema Ordinary Shares which are voted at a duly convened meeting.
(f) If holders of Company Common Stock are entitled to seek dissenters' Meetingappraisal rights under Section 262 of the DGCL, the Proxy shares of Company Common Stock as to which holders give timely and proper notice of intention to exercise dissenters' appraisal rights will not exceed 5% of the outstanding shares of Company Common Stock.
(g) If the Merger requires consent of H.M. Treasury, that consent will have been obtained.
(h) The Sema Ordinary Shares which will be issued as a result of the Merger will have been authorized for listing on the LSE and the Bourse in Paris, and the Sema ADS's which will be issued as a result of the Merger will have been authorized for listing on the New York Stock Exchange or will be eligible for quotation on the Nasdaq National Market.
(i) The Registration Statement shall will have become effective under the Securities Act, no stop order relating to the Registration Statement will have been entered, and no proceeding seeking a stop order relating to the Registration Statement will be pending.
(j) The Merger Date will not contain any untrue statement of a material factbe later than September 30, or omit to state any material fact necessary in order to make the statements therein not misleading2000.
Appears in 1 contract
Samples: Merger Agreement (LHS Group Inc)
Conditions Precedent to Merger. 6.1. 6.1 Conditions to Each Party's Obligations. The respective obligations of each party to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions:
(a) This Agreement and the Merger shall have been approved and adopted by the affirmative vote or consent of the holders of at least (i) 80% of the Voting Stock (as defined in RISCORP's Articles of Incorporation) and (ii) two-thirds a majority of the outstanding shares of Class Company Common Stock and the affirmative vote or consent of the holders of at least two-thirds ( ) of the outstanding of Series A Common StockShares.
(b) All consents, authorizations, orders and approvals identified on Schedule 5.6 of (or filings or registrations with) any governmental authority or other regulatory body required in connection with the execution, delivery and performance of this Agreement, the failure to obtain which would prevent the consummation of the Merger or have a Material Adverse Effect on RISCORP Company or a Material Adverse Effect on Acquiror/GuarantorParent, shall have been obtained without the imposition of any condition having a Material Adverse Effect on RISCORP Company or a Material Adverse Effect on Acquiror/GuarantorParent.
(c) Early termination shall have been granted or applicable waiting periods shall have expired under the HSR Act.
(d) No governmental authority or other regulatory body (including any court of competent jurisdiction) shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making illegal illegal, materially restricting or in any way preventing or prohibiting the Merger or the transactions contemplated by this Agreement.
(de) At The Registration Statement shall have become effective under the mailing date Securities Act and no stop order suspending the effectiveness of the Proxy Registration Statement shall be in effect and no proceedings for such purpose, or under the date proxy rules of the StockholdersSEC pursuant to the Exchange Act and with respect to the transactions contemplated hereby, shall be pending before or threatened by the SEC.
(f) Parent and Company each shall have obtained a written opinion of King & Spalding, counsel to Parent, reasonably acceptable to Parent and Company (the "Tax Opinion"), to the effect that the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code and that the exchange in the Merger of Parent Common Stock for Company Common Stock will not give rise to gain or loss to the shareholders of Company with respect to such exchange (except to the extent of any cash paid in lieu of fractional shares or Dissenting Shares). The Tax Opinion will be addressed to each of Parent and Company. In rendering the Tax Opinion, such counsel shall be entitled to rely on the accuracy of facts set forth in the officers' Meetingcertificates described in Section 5.13.
(g) The shares of Parent Common Stock to be issued pursuant to this Agreement and pursuant to the Company Stock Options shall have been authorized for listing on the NYSE, subject to official notice of issuance.
(h) The sale of Parent Common Stock resulting from the Proxy Statement Merger shall have been qualified or registered with the appropriate state securities law or "blue sky" regulatory authorities of all States in which qualification or registration is required under State securities laws and such qualifications or registrations shall not contain any untrue statement of a material fact, have been suspended or omit to state any material fact necessary in order to make the statements therein not misleadingrevoked.
Appears in 1 contract
