Conditions Precedent to Merger. 5.1 Conditions to the Company's Obligations. The obligations of the Company to complete the Merger are subject to satisfaction on or before the Merger Date of the following conditions (any or all of which may be waived by the Company): (a) 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 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 by the holders of a majority of the outstanding shares of Company Common Stock. (e) Since the date of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger. (f) 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 federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with. (i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect 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 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 (except that the representations and warranties of the Company which are qualified as to
Appears in 2 contracts
Samples: Merger Agreement (Pulte Corp), Merger Agreement (Del Webb Corp)
Conditions Precedent to Merger. 5.1 Conditions to the Company's Obligations. The obligations of the Company to complete the Merger are subject to satisfaction on or before the Merger Date of the following conditions (any or all of which may be waived by the Company):
(a) The representations and warranties of Pulte 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 Pulte 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 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 Mergerperiod), and Pulte Lennar will have delivered to the Company a certificate dated that date and signed by the President and Chief Financial Officer or a Vice President of Pulte Lennar to that effect.
(b) Pulte Lennar 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 Lennar will have delivered to the Company a certificate dated that date and signed by the President and Chief Financial Officer or a Vice President of Pulte 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 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 by the holders of a majority of the outstanding shares of Company 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 aggregate, have resulted in or would reasonably be expected to have result in a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the MergerLennar.
(f) 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 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 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 federal and material state securities laws applicable to the issuance of Pulte Lennar Common Stock as a result of the Merger have been complied with.
(i) The Company shall will have received from Skaddena written opinion of Kaye, ArpsXxholer, SlateFierman, Meagxxx Hays & Xlom XXXXandler, special counsel LLP, in form and substance reasonably satisfactory to the Company, a written opinion dated as on or about the Merger Date Date, to the effect 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 Companythat Lennar, and Pulte, Acquisition, Acquisition and the Company will each hereby agree be a party to provide counsel to a reorganization within the Company with such representations and covenants as counsel to the Company may reasonably request in connection with rendering the opinion.
(jmeaning of Section 368(b) 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 ObligationsCode. The obligations of Pulte and Acquisition to complete the Merger are subject to satisfaction on or before the 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 (except that the representations and warranties of the Company which are qualified as toIn 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. 5.1 9.1 Conditions to Obligation of each Party to Effect the Company's ObligationsMerger. The ----------------------------------------------------------- respective obligations of the Company Parent, Target, any Target Shareholders party hereto and Merger Sub to complete effect the Merger are shall be subject to the satisfaction on or before waiver at or prior to the Merger Closing Date of the following conditions (any or all of which may be waived by the Company):conditions:
(a) 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 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 shall have been approved by the holders shareholders of a majority Target in the manner required under the VSCA and the articles of incorporation and bylaws of Target;
(b) no statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) 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 outstanding shares of Company Common Stock.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;
(ec) Since all filings required to be made prior to the date Closing by any party or any of its respective Subsidiaries with, and all consents, approvals and authorizations required to be obtained prior to the Closing by any party or any of its respective Subsidiaries from, any Governmental Entity in connection with the execution and delivery of this Agreement, no events Agreement and the consummation of the transactions contemplated hereby shall have occurred and no circumstances shall have occurred thatbeen made or obtained, in except where the aggregate, have resulted in or would failure to obtain such consents is not reasonably be expected likely to have a Material Adverse Effect on PulteParent or a Material Adverse Effect on any Target Shareholder and could not reasonably be expected to subject the parties, except occurrences any Target Shareholder or circumstances which are attributable totheir Affiliates or any directors, trustees or result directly from, the public announcement or the pendency officers of any of the Merger or will result from foregoing to the Merger.risk of criminal liability; and
(fd) Any waiting period all consents or approvals of all Persons (and any extensions thereofother than Governmental Entities) under the HSR Act required for or in connection 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 execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby shall have been authorized obtained and shall be in full force and effect, except for listing those the failure of which to obtain would not have a Material Adverse Effect on the New York Stock ExchangeParent, 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 Target or any pending proceeding seeking a stop order, and any other federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
(i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect 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 $27.00Target Shareholder; provided that the Company has provided written notice failure to Pulte obtain any of its irrevocable election (unless Pulte the consents in writing or approvals listed on Section 4.3 of the Target Disclosure Schedule shall not be deemed to such notice being withdrawn by the Company) to terminate be a failure of this Agreement pursuant to Section 6.1(j).
(k) The Director Nominees will have been elected condition 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 Target or the Target Shareholders to complete effect the Merger are subject to satisfaction on or before the 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 (except that the representations and warranties of the Company which are qualified as toMerger.
Appears in 1 contract
Samples: Merger Agreement (Interpore International Inc /De/)
Conditions Precedent to Merger. 5.1 Conditions to the Company's Obligations. The obligations of the Company to complete the Merger are subject to satisfaction on or before the Merger Date of the following conditions (any or all of which may be waived by the CompanyCompany to the extent permitted by law):
(a) The representations and warranties of Pulte Parent and Acquisition Sub contained in this Agreement will, except as contemplated by this Agreement, will be true and correct in all material respects (except that the representations and warranties of Pulte and Acquisition which that are qualified as to by materiality, or absence of Material Adverse Effect, will Effect or words of similar import shall be true and correct in all respects) on 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 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 Mergerperiod), and Pulte Parent will have delivered to the Company a certificate dated that date and signed by the President and Chief Financial Officer or a Vice President of Pulte Parent to that effect.
(b) Pulte Parent and Acquisition 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 Pulte Parent will have delivered to the Company a certificate dated that date and signed by the President and Chief Financial Officer or a Vice President of Pulte Parent to that effect.
(c) No order will have been entered by any court or governmental authority 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 by the holders of at least two-thirds of the outstanding shares of Company Common Stock.
(e) The applicable waiting periods under the HSR Act will have expired or been terminated.
(f) 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 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 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 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 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 true and correct with regard to the specified date or period), 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.
(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, 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 order will have been entered by any Governmental Entity and be in force which invalidates this Agreement or restrains Parent or Sub from completing the transactions which are the subject of this Agreement and no action will be pending against the Company, Pulte Parent or Acquisition 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, Pulte Parent or Acquisition Sub which would reasonably be expected to have a Material Adverse Effect after the Merger on Pulte Parent and its subsidiaries taken as a whole.
(d) The issuance of Parent Common Stock in the Merger will have been approved by the holders of at least a majority in voting power of the 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.
(e) Since the date of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger.
(f) Any The applicable waiting period (and any extensions thereof) periods under the HSR Act with regard to the Merger will have expired or been terminated.
(g) The shares All licenses and approvals from all Governmental Entities (including approvals of Pulte Common Stock issuable to the Company's stockholders as transfers of licenses and permits and of a result change in control of the Merger 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 authorized for listing on obtained, and all required approvals and consents of Government Entities and other third parties necessary to complete the New York Stock Exchange, subject to official notice of issuanceMerger shall have been obtained.
(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 federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
(i) The Company Parent shall have received from Skaddenan opinion of Wachtell, ArpsLipton, Slate, Meagxxx Xxxxx & Xlom XXXXxxx, special counsel to the CompanyParent, a written opinion dated as the Merger Date Date, to the effect that for U.S. federal income tax purposes the Merger will constitute qualify as a reorganization within the meaning of Section 368(a) of the Code. In rendering such 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 entitled reasonably satisfied that there shall be sufficient and appropriate resources in place for Singer to make assumptions fulfill its servicing commitments, (3) the consolidated debt of the Company and rely upon representations its subsidiaries (excluding C-BASS and covenants provided by PulteXxxxxxx) as of the Effective Time shall not exceed $250,000,000, Acquisition(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 the Company, and Pulte, Acquisition, and (5) the Company each hereby agree shall not have made or be liable for any guarantees other than the $25,000,000 guarantee with respect to provide counsel 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 Company ordinary course of their businesses consistent 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(jpast practice).
(k) The Director Nominees will have been elected All of the off-balance sheet financing with respect or relating to the Board assets of Directors Singer (other than the Loan and Security Agreement, dated as of PulteDecember 22, effective immediately 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) The Pulte Meeting Matters will have been approved by From the holders of a majority of date hereof through 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 Effective Time, no Material Adverse Effect on or before the 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 shall have occurred, and there shall exist no fact, development or state of circumstances that, individually or in this Agreement willthe aggregate, except as contemplated by this Agreement, would reasonably be true and correct in all material respects (except that expected to have a Material Adverse Effect on the representations and warranties of the Company which are qualified as toCompany.
Appears in 1 contract
Samples: Merger Agreement (Enhance Financial Services Group Inc)
Conditions Precedent to Merger. 5.1 Section 6.1 Conditions to the Company's ObligationsObligations of PFGI and Provident Bank. The obligations of PFGI and Provident Bank to effect the Company to complete the Merger are Mergers shall be subject to the satisfaction (or waiver by PFGI and Provident Bank) prior to or on or before the Merger Closing Date of the following conditions (any or all of which may be waived by the Company):conditions:
(a) The representations and warranties of Pulte made by Fidelity and Acquisition contained its Subsidiaries in this Agreement will, except as contemplated by this Agreement, shall be true and correct in all material respects (except that on and as of 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 Closing Date with the same effect as though such representations and warranties had been made or given on that date and as of the Closing Date (except that for any such representations or and warranties which relate expressly to made only as of a specified date or a specified period need only have been which shall be 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 as of the Mergersuch 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.;
(b) Pulte Fidelity and Acquisition will its Subsidiaries shall have fulfilled performed and complied in all material respects with all their of its obligations and agreements required to be performed on or prior to the Closing Date under this Agreement required to have been fulfilled on or before Agreement, including, but not limited to, obtaining the Merger Date, approvals of Fidelity's officers 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.directors as provided in Section 4.3 hereof;
(c) No temporary restraining order, preliminary or permanent injunction or other order will have been entered issued by any court of competent jurisdiction or governmental authority and other legal restraint or prohibition (an "Injunction") preventing the consummation of the Mergers shall be in force which invalidates this Agreement effect, nor shall any proceeding by any Regulatory Agency or restrains other person seeking any of the Company from completing the transactions which are the subject of this Agreementforegoing be pending. There shall not be any action taken, and no action will be pending against the Companyor any statute, Pulte rule, regulation or Acquisition relating order enacted, entered, enforced or deemed applicable to the transactions Mergers which are makes the subject consummation 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.Mergers illegal;
(d) The Merger will 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 Regulatory Agency for consummation of the Mergers shall have been approved obtained and all waiting periods required by the holders of a majority of the outstanding shares of Company Common Stock.
(e) Since the date of this Agreement, no events law shall have occurred expired, and no circumstances regulatory approval shall have occurred thatimposed any condition, in the aggregate, have resulted in requirement or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances restriction which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger.
(f) 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 federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
(i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect 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 PFGI reasonably determines in good faith would so materially adversely impact the Effective Time.
(l) The Pulte Meeting Matters will have been approved by the holders of a majority economic or business benefits 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 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 transactions contemplated by this Agreement to PFGI and its shareholders as to render inadvisable the consummation of the Mergers (any such condition, requirement or restriction, a "Burdensome Condition");
(e) PFGI and Provident Bank shall have received all documents required by this Agreement to be received, on or prior to the 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 Closing Date, from Ernst & Young, LLP, its independent public accountants, to such effect;
(g) As soon as practicable after the execution of this Agreement, be true PFGI and correct Provident Bank shall have received an executed Pooling Affiliate Letter in all material respects (except that the representations and warranties form of the Company which are qualified as toExhibit 6.1
Appears in 1 contract
Conditions Precedent to Merger. 5.1 Conditions Precedent to Obligations of Parent, Mergerco and the Company's Obligations. The respective obligations of Mergerco and the Company to complete effect the Merger are subject to the satisfaction on or before waiver (subject to applicable law) at or prior to the Merger Date Effective Time of each of the following conditions (any or all of which may be waived by the Company):conditions:
(a) The representations This Agreement 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 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 shall have been approved and adopted by the holders affirmative vote of a majority of the outstanding shares of Company Common Stock.
(e) Since the date of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger.
(f) 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 federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
(i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect 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 the Company Common Stock present at Pulte's Merger Stockholders Meeting and entitled to vote thereonthereon and the affirmative vote of the holders of a majority of the shares of the Convertible Preferred Stock if such vote is required by applicable law;
(b) No claim, action, 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 the Board of Directors of any party to this Agreement and the transactions contemplated hereby, the negotiation, execution or delivery of this Agreement, the performance of obligations hereunder or the consummation of the transactions contemplated hereby;
(c) No statute, rule, regulation, executive order, decree, injunction or order of any kind shall have been enacted, issued, entered, promulgated or enforced by any Governmental Entity which prohibits the consummation of the Merger and which is in effect at the Effective Time;
(d) The Company shall have received SEC clearance of the 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 Xxxxxx X. Xxxxx & Co. Incorporated to the effect that the Merger Consideration 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 Special Independent Committee, agreeing to cause the Surviving Corporation to comply with the provisions of Section 8.2 hereof.
5.2 Conditions to Pulte's the Obligations of Parent and Acquisition's ObligationsMergerco. The obligations of Pulte Parent and Acquisition Mergerco to complete effect the Merger are subject to the satisfaction on or before waiver (subject to applicable law) at or prior to the Merger Date Effective Time of each of the following conditions (any or all of which may be waived by Pulte):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 willand 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 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, except 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 true 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) Parent and correct Mergerco shall have received a copy of the 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 Subsidiaries and the authority of the Company 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 (except that all of their respective obligations hereunder required to be performed by either of them at or prior to the Closing Date, the representations and warranties of Parent and Mergerco contained in this Agreement and in any certificate or other writing delivered by the Company which are qualified pursuant hereto shall be true in all material respects at and as toof 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 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, 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; 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. 5.1 Conditions The respective obligations of each party to effect the Merger and the other transactions contemplated by this Agreement shall be subject to the Company's Obligations. The obligations of satisfaction at or prior to the Company to complete the Merger are subject to satisfaction on or before the Merger Closing Date of the following conditions (conditions, any or all of which may be waived by waived, in whole or in part (and to the Companyextent necessary, the parties have received the required consents from their respective shareholders to take such actions):
(a) 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 by all required corporate action;
(b) The representations parties have received all consents necessary to effectuate the Merger, including any consents required by governmental authorities and warranties the consent of Pulte the stockholders and Acquisition contained in this Agreement will, except board of directors of Holdings and the consent of the board of directors of Cardax;
(c) A draft of a Current Report on Form 8-K that will be filed with the SEC (as contemplated by this Agreement, defined below) on the Closing Date shall 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 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 by the holders of a majority registration of the outstanding shares Merger Shares under the Securities Act of Company Common Stock.1933, as amended (the “Securities Act”) shall be effective;
(e) Since 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 Persons that hold Holdings Warrants and the rights under the Holdings Warrants is true and complete in all material respects;
(h) Holdings shall not have taken any material action or engaged in any material transaction or agreed to 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 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 have 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, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger.
(f) 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 federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
(i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect 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 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 (except that the representations and warranties of the Company which are qualified as to
Appears in 1 contract
Conditions Precedent to Merger. 5.1 Conditions to the Company's Obligations. The obligations of the Company to complete the Merger are subject to satisfaction on or before the Merger Date of the following conditions (any or all of which may be waived by the Company):
(a) The representations and warranties of Pulte Sema 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 Date with the same effect as though made on that date (except that representations or 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 period) with the same effect as though made on that date (except (i) to the extent of failures of representations and except for 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 Sema, and (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 from, the public announcement or the pendency of the Merger), ) and Pulte Sema will have delivered to the Company a certificate dated that date and signed by the President and Chief Financial Officer principal executive officer or the principal financial officer of Pulte Sema to that effect.
(b) Pulte 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, 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) 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, 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.
(de) The Merger will have been approved by the holders of a majority of the outstanding shares of Company Common Stock.
(e) Since the date of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger.
(f) Any waiting period (and any extensions thereof) under the HSR Act with regard to The Sema Ordinary Shares which will be issued as a result of the Merger will have expired or been terminated.
(g) The shares of Pulte Common Stock issuable to authorized for listing on the CompanyLSE and the Bourse in Paris, and the Sema ADS's stockholders which will be issued as a result of the Merger will have been authorized for listing on the New York Stock Exchange, subject to official notice of issuanceExchange or will be eligible for quotation on the Nasdaq National Market.
(hg) The Registration Statement will have become effective under the Securities Act and will not be the subject of any Act, no stop order or any pending relating to the Registration Statement will have been entered, and no proceeding seeking a stop order, and any other federal and material state securities laws applicable order relating to the issuance Registration Statement will be pending.
(h) Sema will not have amended its Memorandum of Pulte Common Stock Association or Articles of Association, except as a result of the Merger have been complied withcontemplated 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 shall will have received from Skadden, Arps, Slate, Meagxxx an opinion of Alstxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date Xird LLP to the effect 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 opinionCode 35 37 and that Sema, 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, Acquisition and the Company each hereby agree will be a party to provide counsel to a reorganization within the Company with such representations and covenants as counsel to meaning of Section 368(b) of 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 TimeCode.
(l) The Pulte Meeting Matters Merger Date 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 thereonbe not later than September 30, 2000.
5.2 Conditions to PulteSema's and Acquisition's Obligations. The obligations of Pulte Sema and Acquisition to complete the Merger are subject to satisfaction on or before the Merger Date of the following conditions (any or all of which may be waived by PulteSema):
(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 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) 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 transactions which are qualified 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 Company, the increase in Sema's authorized share capital which is necessary to permit the Merger Consideration to be issued and the allotment of the relevant 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' appraisal rights under Section 262 of the DGCL, the shares of Company Common Stock as toto 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 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 be later than September 30, 2000.
Appears in 1 contract
Samples: Merger Agreement (LHS Group Inc)
Conditions Precedent to Merger. 5.1 Conditions The respective obligations of each party to effect the Merger and the other transactions contemplated by this Agreement shall be subject to the Company's Obligations. The obligations of satisfaction at or prior to the Company to complete the Merger are subject to satisfaction on or before the Merger Closing Date of the following conditions (conditions, any or all of which may be waived by waived, in whole or in part (and to the Companyextent necessary, the parties have received the required consents from their respective shareholders to take such actions):
(a) The representations PubCo shall have amended its certificate of incorporation so that it is amended and warranties restated in the form attached hereto as Exhibit II (the “Effective Time PubCo Charter”) and shall have consummated a stock dividend so that one share of Pulte and Acquisition contained in PubCo Common Stock outstanding on the date of 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 equal to 4.4 shares (or such other amount specified by Pharma prior to Closing Date and correct in all respectsaccepted by PubCo) on 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 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 PubCo Common Stock immediately after 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 PubCo shall have amended its bylaws so that it is amended and Acquisition will have fulfilled restated 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 form attached hereto as Exhibit III (the Company a certificate dated that date and signed by the President and Chief Financial Officer of Pulte to that effect.“Effective Time PubCo Bylaws”);
(c) No order will PubCo shall have been entered adopted the Equity Based Stock Incentive Plan (the “PubCo Option Plan”) in the form attached hereto as Exhibit IV reserving the number of shares of Common Stock specified 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 Pharma prior 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 wholeClosing Date.
(d) The Merger will PubCo shall have been approved by 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 holders of a majority of the outstanding shares of Company Common Stock.Effective Time;
(e) Since All of the date equity interests of this AgreementKoffee Korner’s Inc. (Texas), no events a Texas corporation and wholly-owned subsidiary of PubCo, shall have occurred 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 circumstances shall have occurred liabilities or obligations of any kind or nature (absolute, accrued, contingent or otherwise) other than those liabilities contemplated by the 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 aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger.
(f) Any waiting period (and The parties have received all consents necessary to effectuate the Merger, including any extensions thereof) under the HSR Act with regard to the Merger will have expired or been terminated.consents required by governmental authorities;
(g) The shares fiscal year-end of Pulte Common Stock issuable to the Company's stockholders as a result of the Merger will PubCo shall have been authorized for listing on the New York Stock Exchange, subject changed to official notice of issuance.December 31; and
(h) The Registration Statement A draft of a Current Report on Form 8K that will have become effective under be filed with the Securities Act and will not be SEC (as defined below) on the subject of any stop order or any pending proceeding seeking a stop order, and any other federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger Closing Date shall have been complied withprovided to Holdings and be acceptable to Holdings, in its sole and absolute discretion.
(i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect 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 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 (except that the representations and warranties of the Company which are qualified as to
Appears in 1 contract
Conditions Precedent to Merger. 5.1 Conditions to the Company's ObligationsCONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT, MERGERCO AND THE COMPANY. The respective obligations of Mergerco and the Company to complete effect the Merger are subject to the satisfaction on or before waiver (subject to applicable law) at or prior to the Merger Date Effective Time of each of the following conditions (any or all of which may be waived by the Company):conditions:
(a) The representations This Agreement 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 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 shall have been approved and adopted by the holders affirmative vote of a majority of the outstanding shares of Company Common Stock.
(e) Since the date of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger.
(f) 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 federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
(i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect 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 the Company Common Stock present at Pulte's Merger Stockholders Meeting and entitled to vote thereon.thereon and the affirmative vote of the holders of a majority of the shares of the Convertible Preferred Stock if such vote is required by applicable law;
5.2 Conditions (b) No claim, action, suit, proceeding, arbitration or litigation has been threatened to Pulte's 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 Acquisition's Obligations. The the Board of Directors of any party to this Agreement and the transactions contemplated hereby, the negotiation, execution or delivery of this Agreement, the performance of obligations hereunder or the consummation of Pulte and Acquisition to complete the transactions contemplated hereby;
(c) No statute, rule, regulation, executive order, decree, injunction or order of any kind shall have been enacted, issued, entered, promulgated or enforced by any Governmental Entity which prohibits the consummation of the Merger are subject to satisfaction on or before and which is in effect at the Effective Time;
(d) The Company shall have received SEC clearance of the 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 Date 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 following conditions shares of Common Stock voting on the Merger (other than shares held by Parent or any or all affiliates of which may be waived by Pulte):Parent) shall have been voted to approve and adopt this Agreement and the Merger; and
(ai) The representations and warranties Board of Directors of the Company contained in as of the date of this Agreement willshall have received an agreement from British Aerospace plc, except as contemplated by this Agreementin a form reasonably satisfactory to the Special Independent Committee, be true and correct in all material respects (except that agreeing to cause the representations and warranties Surviving Corporation to comply with the provisions of the Company which are qualified as toSection 8.2 hereof.
Appears in 1 contract
Samples: Merger Agreement (British Aerospace Public LTD Co Et Al)
Conditions Precedent to Merger. 5.1 Conditions The respective obligations of each party to effect the Merger and the other transactions contemplated by this Agreement shall be subject to the Company's Obligations. The obligations of satisfaction at or prior to the Company to complete the Merger are subject to satisfaction on or before the Merger Closing Date of the following conditions (conditions, any or all of which may be waived by waived, in whole or in part (and to the Companyextent 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 conditions is satisfied in all respects:
(i) TIGE and Holdings shall have obtained (and shall have provided copies thereof to PRCD) all waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices which are required on the part of TIGE and Holdings, respectively, except for any the failure of which to obtain or effect does not, individually or in the aggregate, have a Material Adverse Effect or a material adverse effect on the ability of the 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 Pulte Holdings and Acquisition contained TIGE set forth in this Agreement will(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, be true and correct in all material respects or (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 respectsii) on 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 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 cause any of the Merger)transactions contemplated by this Agreement to be rescinded following consummation, 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 no such judgment, order, decree, stipulation or injunction shall be in effect.
(bi) 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 PRCD shall have delivered to the Company TIGE a certificate dated (the “PRCD Certificate”) to the effect that date and signed by each of the President and Chief Financial Officer of Pulte to that effect.following conditions is satisfied in all respects:
(ci) No order will PRCD and PRCD Sub shall have been entered by any court obtained (and shall have provided copies thereof to TIGE) all waivers, permits, consents, resolutions, approvals or governmental authority other authorizations, and be in force which invalidates this Agreement or restrains effected all of the Company from completing the transactions registrations, filings and notices which are required on the subject part of this AgreementPRCD and PRCD Sub, and no action will be pending against respectively, except for any the Companyfailure of which to obtain or effect does not, Pulte individually 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 by the holders of a majority of the outstanding shares of Company Common Stock.
(e) Since the date of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a PRCD Material Adverse Effect or a material adverse effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency ability of the Merger or will result from Parties to consummate the Merger.transactions contemplated by this Agreement;
(fii) Any waiting period (PRCD and any extensions thereof) under the HSR Act with regard to the Merger will have expired or been terminated.PRCD Sub obtaining all necessary board, shareholder, and third party consents; and
(giii) 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 Exchangeno action by any government or authority or legal proceedings shall be pending wherein an unfavorable judgment, 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 federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
decree, stipulation or injunction would (i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect that for U.S. federal income tax purposes the Merger will constitute a reorganization within the meaning prevent consummation of Section 368(a) any of the Code. In rendering transactions contemplated by this Agreement, or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such opinionjudgment, counsel to the Company order, decree, stipulation or injunction 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 opinioneffect; and.
(j) The Market Value TIGE shall have received copies of a share documentation that is satisfactory to it that evidences that 11,685,000 of Pulte PRCD 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 irrevocably tendered to the Board transfer agent of Directors of Pulte, effective immediately after the Effective TimePRCD for cancellation in form and substance acceptable to TIGE.
(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 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 (except that the representations and warranties of the Company which are qualified as to
Appears in 1 contract
Samples: Merger Agreement (Priced in Corp.)
Conditions Precedent to Merger. 5.1 6.1 Conditions to the CompanyEach Party's Obligations. The respective obligations of the Company each party to complete effect the Merger are shall be subject to the satisfaction on or before prior to the Merger Closing Date of each of the following conditions (any or all of which may be waived by the Company):conditions:
(a) The representations This Agreement 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 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 shall have been approved and adopted by the affirmative vote or consent of the holders of at least a majority of the outstanding shares of Company Common StockStock and the affirmative vote or consent of the holders of at least two-thirds ( ) of the outstanding of Series A Shares.
(eb) Since All consents, authorizations, orders and approvals of (or filings or registrations with) any governmental authority or other regulatory body required in connection with the date execution, delivery and performance of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in failure to obtain which would prevent the consummation of the Merger or would reasonably be expected to have a Material Adverse Effect on PulteCompany or a Material Adverse Effect on Parent, except occurrences shall have been obtained without the imposition of any condition having a Material Adverse Effect on Company or circumstances a Material Adverse Effect on Parent.
(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 are attributable tois then in effect and has the effect of making illegal, materially restricting or result directly from, the public announcement in any way preventing or the pendency of prohibiting the Merger or will result from the Mergertransactions contemplated by this Agreement.
(f) 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.
(he) The Registration Statement will shall have become effective under the Securities Act and will not be the subject of any no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose, or any pending proceeding seeking a stop order, and any other federal and material state securities laws applicable under the proxy rules of the SEC pursuant to the issuance of Pulte Common Stock as a result of Exchange Act and with respect to the Merger have been complied withtransactions contemplated hereby, shall be pending before or threatened by the SEC.
(if) The Parent and Company each shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, obtained a written opinion dated as of King & Spalding, counsel to Parent, reasonably acceptable to Parent and Company (the Merger Date "Tax Opinion"), to the effect that for U.S. federal income tax purposes the Merger will constitute a reorganization within the meaning of Section 368(a) of the CodeCode 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 opinion, counsel to the Company shall be entitled to make assumptions rely on the accuracy of facts set forth in the officers' certificates described in Section 5.13.
(g) The shares of Parent Common Stock to be issued pursuant to this Agreement 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 pursuant to the Company with such representations and covenants as counsel Stock Options shall have been authorized for listing on the NYSE, subject to the Company may reasonably request in connection with rendering the opinionofficial notice of issuance.
(jh) The Market Value sale of a share of Pulte Parent Common Stock will not be less than $27.00; provided that resulting from 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 Merger shall have been elected to qualified or registered with the Board appropriate state securities law or "blue sky" regulatory authorities of Directors of Pulte, effective immediately after the Effective Time.
(l) The Pulte Meeting Matters will all States in which qualification or registration is required under State securities laws and such qualifications or registrations shall not 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 thereonsuspended or revoked.
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 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 (except that the representations and warranties of the Company which are qualified as to
Appears in 1 contract
Conditions Precedent to Merger. 5.1 Conditions The Merger shall not be consummated unless each of the following 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):
(i) 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 Obligations. liabilities and obligations, including all those arising under or in any way connected to this Credit Agreement.
(iii) The obligations 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 complete 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 obtained (without the imposition of any conditions that are subject not acceptable to satisfaction on 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 before regulation 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.
(vi) The Banks shall have received all additional financial, business and other information regarding ITI and its subsidiaries as they shall have reasonably requested.
(vii) The Banks shall have received (i) satisfactory opinions of counsel for the Company and ITI as to the transactions contemplated by the Merger Date and (ii) such corporate resolutions, certificates and other documents as the Banks shall reasonably request.
(viii) The Company shall have delivered to the Agent and each Bank, not less than 10 days prior to the consummation of such Merger, a certificate of a financial officer of the following conditions 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 Agent) 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 facilities described in the loan documents), all of which 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 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 inventory of New Empire is or may be waived located. New Empire shall execute all documentation reasonably requested by the Company):Agent in order to grant the 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.
(axii) The 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 Pulte the Company and Acquisition contained in this Agreement will, except as contemplated by this Agreement, 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 (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 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 immediately prior to, or result directly from the public announcement or the pendency of and after giving effect to, 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.
(bxiv) Pulte and Acquisition will The Agent shall have fulfilled received such other information or documents as it shall have reasonably requested 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 effectconnection with such Merger.
(cxv) No order will The Merger shall have been entered by any court or governmental authority and be consummated in force which invalidates this Agreement or restrains accordance with the Company from completing the transactions which are the subject of this ITI Merger Agreement, without any waiver or amendment of any material term or condition therein not consented to by the Agent and no action will be pending against in compliance with all applicable laws and all necessary approvals, except where the Company, Pulte or Acquisition relating failure 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 so comply could not reasonably be expected to have a Material Adverse Effect after the Merger on Pulte and its subsidiaries taken as a wholeEffect.
(d) The Merger will have been approved by the holders of a majority of the outstanding shares of Company Common Stock.
(e) Since the date of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger.
(f) 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 federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
(i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect 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 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 (except that the representations and warranties of the Company which are qualified as to
Appears in 1 contract
Conditions Precedent to Merger. 5.1 6.1 Conditions to the CompanyEach Party's Obligations. The respective obligations of the Company each party to complete effect the Merger are shall be subject to the satisfaction on or before prior to the Merger Closing Date of each of the following conditions (any or all of which may be waived by the Company):conditions:
(a) The representations This Agreement 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 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 shall have been approved and adopted by the affirmative vote or consent of the holders of at least a majority of the outstanding shares of Company Common StockStock and the affirmative vote or consent of the holders of at least two-thirds (2/3) of the outstanding of Series A Shares.
(eb) Since All consents, authorizations, orders and approvals of (or filings or registrations with) any governmental authority or other regulatory body required in connection with the date execution, delivery and performance of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in failure to obtain which would prevent the consummation of the Merger or would reasonably be expected to have a Material Adverse Effect on PulteCompany or a Material Adverse Effect on Parent, except occurrences shall have been obtained without the imposition of any condition having a Material Adverse Effect on Company or circumstances a Material Adverse Effect on Parent.
(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 are attributable tois then in effect and has the effect of making illegal, materially restricting or result directly from, the public announcement in any way preventing or the pendency of prohibiting the Merger or will result from the Mergertransactions contemplated by this Agreement.
(f) 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.
(he) The Registration Statement will shall have become effective under the Securities Act and will not be the subject of any no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose, or any pending proceeding seeking a stop order, and any other federal and material state securities laws applicable under the proxy rules of the SEC pursuant to the issuance of Pulte Common Stock as a result of Exchange Act and with respect to the Merger have been complied withtransactions contemplated hereby, shall be pending before or threatened by the SEC.
(if) The Parent and Company each shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, obtained a written opinion dated as of King & Spalding, counsel to Parent, reasonably acceptable to Parent and Company (the Merger Date "Tax Opinion"), to the effect that for U.S. federal income tax purposes the Merger will constitute a reorganization within the meaning of Section 368(a) of the CodeCode 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 opinion, counsel to the Company shall be entitled to make assumptions rely on the accuracy of facts set forth in the officers' certificates described in Section 5.13.
(g) The shares of Parent Common Stock to be issued pursuant to this Agreement 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 pursuant to the Company with such representations and covenants as counsel Stock Options shall have been authorized for listing on the NYSE, subject to the Company may reasonably request in connection with rendering the opinionofficial notice of issuance.
(jh) The Market Value sale of a share of Pulte Parent Common Stock will not be less than $27.00; provided that resulting from 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 Merger shall have been elected to qualified or registered with the Board appropriate state securities law or "blue sky" regulatory authorities of Directors of Pulte, effective immediately after the Effective Time.
(l) The Pulte Meeting Matters will all States in which qualification or registration is required under State securities laws and such qualifications or registrations shall not 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 thereonsuspended or revoked.
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 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 (except that the representations and warranties of the Company which are qualified as to
Appears in 1 contract
Conditions Precedent to Merger. 5.1 Conditions The consent and waivers set forth in Section 1 hereof with respect to the Company's Obligations. The obligations Merger, are contingent upon receipt by Bank of the Company to complete the Merger are subject to satisfaction on or before the Merger Date of the following conditions (any or all following, each of which may shall be waived by the Company):in form and content satisfactory to Bank:
(a) The representations A fully executed surety agreement of Public Shell (the “Public Shell Guaranty”);
(b) 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 warranties executed blank stock powers;
(c) Copy of Pulte and Acquisition contained in this Agreement willthe fully executed authorizing resolutions regarding the Merger, except as contemplated by this Agreement, certified to be true and correct in all material respects by the Secretary of Infologix and the Merger Shell;
(except d) Evidence that Infologix is the representations corporation surviving the Merger and warranties that its state of Pulte formation after the Merger is the State of Delaware;
(e) A copy of the articles of merger and Acquisition which are qualified as the plan of merger along with evidence that such document has been delivered to materialitythe applicable Secretary of State for filing, or absence with a filed copy of Material Adverse Effectsuch articles of merger and plan of merger, will certified to be true and correct in all respectsby the applicable Secretary of State, within thirty (30) on days after the Merger Date with consummation of the same effect as though made on that date Merger;
(except that representations or warranties which relate expressly f) Copy of the by-laws of the company surviving the Merger, certified to a specified date or a specified period need only have been be true and correct with regard by the Secretary of such company;
(g) Opinion of counsel 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 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 Pulte will all necessary consents, approvals and/or authorizations required in connection with the Merger have delivered to the Company a certificate dated that date been obtained and signed by the President are in full force and Chief Financial Officer of Pulte to that effect.
(bii) Pulte After the consummation of the Merger, Infologix retains all assets, properties, rights 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 remedies of Infologix prior to the Company a certificate dated that date consummation of the Merger, including, without limitation, all assets of Infologix previously granted, pledged or assigned by Infologix to Bank as Collateral and signed by Infologix is the President sole legal and Chief Financial Officer beneficial owner of Pulte to that effectsuch assets, properties, rights and remedies.
(ciii) No order will have been entered by any court or governmental authority 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 in force which invalidates this the responsibility of Infologix, including, without limitation, all sums advanced and outstanding under the Loan Agreement or restrains any of the Company from completing the transactions which are the subject other Loan Documents and all other obligations and covenants of this Agreement, and no action will be pending against the Company, Pulte or Acquisition relating Infologix prior to the transactions which are consummation of the subject Merger to Bank under the Loan Agreement or any 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 other Loan Documents.
(iv) Bank continues to have a Material Adverse Effect after valid, continuing and enforceable perfected security interests in all of Infologix’s right, title and interest in, to and under the Merger on Pulte and its subsidiaries taken as a wholeCollateral.
(dv) The Merger will have been approved by After the holders of a majority consummation of the outstanding shares Merger, Infologix is a corporation validly existing and in good standing under the laws of Company Common Stockthe 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.
(evi) Since All necessary consents, approvals and/or authorizations required in connection with the date execution, deliver and performance by Infologix of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, Loan Documents after the public announcement or the pendency consummation of the Merger or will result from the Merger.
(f) 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 issuanceobtained and are in full force and effect.
(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 Such other federal and material state securities laws applicable to the issuance of Pulte Common Stock items as a result of the Merger have been complied with.
(i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect 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 Bank may reasonably request in connection with rendering the opinionrequest, including, without limitation, such guaranties as Bank may require.
(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 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 (except that the representations and warranties of the Company which are qualified as to
Appears in 1 contract
Conditions Precedent to Merger. 5.1 Conditions The respective obligations of each party to effect the Merger and the other transactions contemplated by this Agreement shall be subject to the Company's Obligations. The obligations of satisfaction at or prior to the Company to complete the Merger are subject to satisfaction on or before the Merger Closing Date of the following conditions (conditions, any or all of which may be waived by waived, in whole or in part (and to the Companyextent necessary, the parties have received the required consents from their respective shareholders to take such actions):
(a) 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 Shares by all required corporate action;
(b) The representations parties have received all consents necessary to effectuate the Merger, including any consents required by governmental authorities and warranties the consent of Pulte the stockholders and Acquisition contained in this Agreement will, except board of directors of Holdings and the consent of the board of directors of Cardax;
(c) A draft of a Current Report on Form 8-K that will be filed with the SEC (as contemplated by this Agreement, defined below) on the Closing Date shall 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 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 by the holders of a majority registration of the outstanding shares Merger Shares under the Securities Act of Company Common Stock.1933, as amended (the “Securities Act”) shall be effective;
(e) Since 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 Persons that hold Holdings Warrants and the rights under the Holdings Warrants is true and complete in all material respects;
(h) Holdings shall not have taken any material action or engaged in any material transaction or agreed to 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 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 have 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, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger.
(f) 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 federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
(i) The Company shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a written opinion dated as the Merger Date to the effect 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 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 (except that the representations and warranties of the Company which are qualified as to
Appears in 1 contract
Samples: Merger Agreement (Cardax, Inc.)
Conditions Precedent to Merger. 5.1 Conditions to the Company's Obligations. The obligations of the Company to complete the Merger are subject to satisfaction on or before the Merger Date of the following conditions (any or all of which may be waived by the Company):
(a) The representations obligations of each party to effect the Merger and warranties of Pulte and Acquisition contained in this Agreement will, except as otherwise consummate the transactions contemplated by this AgreementAgreement are subject to the satisfaction or (to the extent permitted by law) waiver by each of the parties at or prior to the Effective Time, be true of each of the following conditions:
(i) No governmental authority of applicable jurisdiction shall have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) which is then in effect and correct in all material respects (except that has the representations and warranties effect 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 making the Merger Date with the same effect as though made on that date (except that representations illegal or warranties which relate expressly to a specified date otherwise preventing 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 prohibiting consummation 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 by the holders of a majority of the outstanding shares of Company Common Stock.
(e) Since the date of this Agreement, no events shall have occurred and no circumstances shall have occurred that, in the aggregate, have resulted in or would reasonably be expected to have a Material Adverse Effect on Pulte, except occurrences or circumstances which are attributable to, or result directly from, the public announcement or the pendency of the Merger or will result from the Merger.
(f) Any waiting period (and any extensions thereof) under the HSR Act with regard to the Merger will have expired or been terminated.
(gii) The shares of Pulte PubCo Common Stock issuable to the Company's stockholders as a result of be issued in the Merger will shall have been authorized for listing on the New York Stock ExchangeExchange (“NYSE”), subject to official notice of issuance.
(hiii) 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 federal and material state securities laws applicable to the issuance of Pulte Common Stock as a result of the Merger have been complied with.
(i) The Company Partnership shall have received from Skadden, Arps, Slate, Meagxxx & Xlom XXX, special counsel to the Company, a affirmative vote or written opinion dated as the Merger Date to the effect that for U.S. federal income tax purposes the Merger will constitute a reorganization within the meaning consent 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 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 Pulte PubCo Common Stock present at Pulte's Merger Stockholders Meeting and entitled to vote thereonStock.
5.2 Conditions to Pulte's and Acquisition's Obligations. (b) The respective obligations of Pulte PubCo and Acquisition Merger Sub to complete effect the Merger and to consummate the other transactions contemplated by this Agreement are subject to the satisfaction on or before (to the extent permitted by law) waiver by Merger Date Sub, at or prior to the Effective Time, of the following conditions (any or all of which may be waived by Pulte):additional conditions:
(ai) The representations and warranties Since the date of the Company contained in this Agreement will, except as contemplated by this Agreement, there shall not have been any event, change or occurrence that, individually or in the aggregate, has had or would reasonably be true and correct in all expected to have a material respects (except that adverse effect on the representations and warranties business, condition, results of operations, assets or liabilities of the Company which are qualified as toPartnership.
Appears in 1 contract
