CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law): (a) (i) the representations and warranties of the Company contained in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect; and (ii) the Fundamental Representations shall be true and correct in all respects (except, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing; and (b) the Company shall have performed and complied in all material respects with all obligations, covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Closing; and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (United Rentals North America Inc), Merger Agreement (BakerCorp International, Inc.)
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations obligation of Parent and Merger Sub to consummate effect the transactions contemplated by this Agreement are is subject to the satisfaction, on satisfaction or prior waiver by Parent (to the extent the Closing Date, may legally be effected despite the non-fulfillment of each such condition) of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law):conditions:
(a) (i) the The representations and warranties of the Company contained and the Selling Parties in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, this Agreement shall be true true, complete and correct accurate in all respects (without regard to any materiality qualifiers therein) as of the date hereof and as of the Closing Date as if made on at and as of the Closing Date (or, if given with the same effect as of a specific date, though such representations and warranties had been made at and as of such datetime, other than representations and warranties that speak as of another specific date or time prior to the date hereof (which need only be true and correct as of such date or time); provided, except where however, that for purposes of determining the satisfaction of this condition, such representations and warranties (other than the representations and warranties contained in Section 4.2, 4.5, 4.6, and 5.1, which shall be true, complete and accurate in all material respects and the representations and warranties contained in Section 4.13(c) which shall be true, complete and accurate in all respects) shall be deemed to be true, complete and accurate in all respects unless the failure or failures of such representations and warranties to be so true and correct would notcorrect, individually or in the aggregate, have or reasonably be expected to would have a Material Adverse Effect; Effect on the Company.
(b) All of the terms, covenants and (ii) conditions to be complied with and performed by the Fundamental Representations Company or any of the Selling Parties on or prior to the Closing Date shall be true and correct have been complied with or performed in all respects material respects.
(exceptc) Parent shall have received certificates, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof and dated as of the Closing Date as if made Date, executed on and as behalf of the Closing Date Company and by each Selling Party or the Selling Parties’ Representative on behalf of each such Selling Party certifying that the conditions specified in Section 8.2(a) hereof and Section 8.2(b) hereof have been fulfilled.
(or, if given as of a specific date, at and as of such date), and d) Parent shall have received a certificate signed by an authorized officer valid and binding Consents for the Contracts set forth on Section 8.2(d) of the Company, confirming the foregoing; andDisclosure Schedule.
(be) the The Company shall have performed repaid in full any and complied in all material respects with of the Indebtedness of the Company and its Subsidiaries, and shall have caused any and all obligations, covenants and agreements required by this Agreement Liens on any of their assets to be performed or complied with by it at or prior to discharged, including those items referenced in Section 4.12 of the Closing; Disclosure Schedule, and Parent shall have received a certificate signed by an authorized officer delivered to Parent payoff letters (or other evidence) evidencing such payoff and discharge. Solely for purposes of this Section 8.2(e), “Indebtedness” and “Liens” shall have the Company, confirming respective meaning given to each such term in the foregoingMast Preferred Stock Purchase Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Gleacher & Company, Inc.), Merger Agreement (Broadpoint Securities Group, Inc.)
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations obligation of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law):
(a) (i) the representations and warranties of the Company contained set forth in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating this Agreement qualified as to materiality or Material Adverse Effectshall be true and correct, and those not so qualified shall be true and correct in all respects material respects, at and as of the date hereof and at and as of the Closing Date as if though made on and as of the Closing Date (or, if given as of a specific date, at and as of such date)Date, except where to the failure of extent such representations and warranties relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be so true and correct would notcorrect, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect; and (ii) the Fundamental Representations those not so qualified shall be true and correct in all respects (exceptmaterial respects, in the case of the representations at and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on and as of such earlier date); provided, however, that in the Closing Date (or, if given as event of a specific datebreach or untruth of a representation or warranty, at and as the condition set forth in this Section 8.1(a) shall be deemed satisfied unless the effect of all such date), and Parent shall have received breaches or untruths taken together result in a certificate signed by an authorized officer of the Company, confirming the foregoing; andMaterial Adverse Effect;
(b) the Company shall have performed and complied in all material respects with all obligations, covenants obligations and agreements required by this Agreement to be performed or complied with by it at them on or prior to the Closing; Closing Date;
(c) there shall not be in effect any Law or Order restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act and other Competition Laws shall have expired or early termination shall have been granted;
(e) since the date hereof, there shall not have been any change, event or development that has had, or would reasonably be expected to have, a Material Adverse Effect;
(f) Parent shall have received a certificate signed by an authorized officer each of the Companyconsents and approvals, confirming and copies of the foregoingnotices, described in Schedule 8.1(f), each such consent, approval or notice (i) shall be in form and substance reasonably satisfactory to Parent, (ii) shall not be subject to the satisfaction of any condition that has not been satisfied or waived and (iii) shall be in full force and effect;
(g) Parent shall have received pay-off letters in customary form (including authorizations to file UCC-3s reflecting the termination of security interests in the underlying security) from each of the lenders described in Schedule 1.1(b);
(h) the Employment Agreement dated as of the date hereof between the Company and Xxx X. Xxxxxx shall be in full force and effect;
(i) the Amended and Restated Limited Liability Company Agreement of Parent in substantially the form attached hereto as Exhibit B (the “New Parent LLC Agreement”) shall have been executed and delivered by each of the Rollover Holders;
(j) the Rollover Transaction shall have been effected; and
(k) Parent shall have received evidence that the Company and any of its Subsidiaries have terminated any tax sharing agreement to which they were a party, such that the Company and any of its Subsidiaries will not have any obligations under such agreements after the Closing.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations of Parent and Merger Sub to consummate the transactions contemplated Merger and to take the other actions required to be taken by this Agreement Parent and Merger Sub at the Closing are subject to the satisfaction, on or prior to the Closing Date, satisfaction of each of the following conditions (any or all of which may be waived by Parent Parent, in whole or in part to the extent permitted by applicable Lawpart, in accordance with Section 12.13):
(a) (i) the representations and warranties of made by the Company contained in Article V (other than in Section 5.1 (Organization 4 and Good Standing), each Selling Shareholder in Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) 5 and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, in each other Transactional Agreement shall be have been true and correct accurate in all material respects as of the date hereof made and as of the Closing Date as if though made on and as of the Closing Date (or, if given other than those representations and warranties that are made as of a specific specified date, at and as of such date), except where the failure of in which case such representations and warranties to be so true and correct would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect; and (ii) the Fundamental Representations shall be true and correct accurate in all material respects (except, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such specified date);
(b) all covenants, agreements and Parent conditions contained in this Agreement or in any other Transactional Agreement to be observed by the Company and the Selling Shareholders on or prior to the Closing shall have received been performed or complied with in all material respects;
(c) the following documents shall be delivered to Parent:
(i) the escrow agreement in substantially the form attached hereto as Exhibit B (the "Escrow Agreement"), duly executed by each Selling Shareholder;
(ii) a restricted stock purchase agreement in substantially the form attached hereto as Exhibit C (collectively, the "Restricted Stock Agreements"), duly executed by each Key Employee;
(iii) an employment agreement and proprietary information and invention agreement in substantially the form attached hereto as Exhibit D (collectively, the "Employment Agreements"), duly executed by each Key Employee;
(iv) an employee confidentiality and nondisclosure agreement in the form provided to counsel to Parent (collectively, "Nondisclosure Agreements"), duly executed by the Company and each current and former director, officer, employee, consultant and contractor of the Company;
(v) the legal opinion of Carrxxx, Xxrdxxx & XcDoxxxxx XXX, counsel to the Selling Shareholders and the Company, dated the Closing Date, in substantially the form attached hereto as Exhibit E;
(vi) a certificate signed (the "Selling Shareholders Closing Certificate" and the "Company Closing Certificate," respectively) duly executed by an authorized the Selling Shareholders and a senior executive officer of the Company, confirming respectively, dated as of the foregoingClosing Date, and certifying to the satisfaction of the conditions specified in Sections 4.1(a) and (b);
(vii) the written resignations of the members of the Company Board; and
(bviii) such other documents reasonably satisfactory to Parent as Parent may reasonably request in good faith for the purpose of (A) evidencing the accuracy of any representation or warranty made by the Company or any Selling Shareholder, (B) evidencing the compliance by the Company and each Selling Shareholder with, or the performance by the Company and each Selling Shareholder of, any covenant or obligation set forth in this Agreement or any other Transactional Agreement, (C) evidencing the satisfaction of the conditions set forth in this Section 3.1 or (D) otherwise facilitating the consummation of the Merger and the Related Transactions;
(d) all corporate and other proceedings required to be taken on the part of the Company or any Selling Shareholder in connection with this Agreement, the other Transactional Agreements, the Merger or the Related Transactions, and all documents incident thereto, shall be reasonably satisfactory in form and in substance to Parent and its counsel;
(e) each of the Consents identified in Part 4.5 of the Disclosure Schedule, if any, shall have performed been obtained and complied shall be in all material respects with all obligationsfull force and effect;
(f) except as described in the Disclosure Schedule, covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Closing; and Parent there shall have received been no material adverse change in the Company's business, financial condition, assets, liabilities or results of operations (taken as a certificate signed by an authorized officer whole) since December 31, 1999 (a "Material Adverse Change");
(g) except as described in the Disclosure Schedule, there shall not have been commenced or expressly threatened against Parent, the Company or any of their affiliates any Proceeding (i) involving any challenge to, or seeking damages or other relief in connection with, the Merger or any of the Related Transactions, or (ii) that is likely to have the effect of preventing, delaying, making illegal or otherwise interfering with the Merger or any of the Related Transactions or have a material adverse effect on the Company's business, financial condition, assets, liabilities or results of operations (taken as a whole) (a "Material Adverse Effect");
(h) no Person shall have made or expressly threatened any claim asserting that such Person (i) may be the holder or the beneficial owner or, or may have the right to acquire or to obtain beneficial ownership of, any capital stock or other securities, or securities convertible into capital stock, of the Company, confirming or (ii) may be entitled to all or any portion of the foregoingTotal Merger Consideration; and
(i) consummation of the Merger and any other Related Transaction, and performance by the Company and the Selling Shareholders of their other obligations hereunder and under any other Transactional Agreement, shall not, directly or indirectly (with or without notice or lapse of time), contravene or conflict with or result in a violation of, or cause Parent or the Company, or any Person affiliated with Parent or the Company, to suffer any material adverse consequence under, (i) any applicable legal requirement or Order, or (ii) any legal requirement or Order that has been proposed by or before any Governmental Body.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement Merger are subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law):
(a) (i) the representations and warranties of the Company contained set forth in Article V (other than in this Agreement, which representations and warranties shall be deemed for purposes of this Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a8.1(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating not to include any qualification or limitation with respect to materiality or (whether by reference to "Material Adverse Effect" or otherwise), shall be true and correct in all respects as of the date hereof at and as of the Closing Date as if made on except (with respect to the representations and as warranties of the Closing Date (or, if given as of a specific date, at Company set forth in this Agreement other than in Sections 5.2 and as of such date), except 5.4) where the failure of such representations and warranties thereof to be so true and correct would notcorrect, individually or in the aggregate, have or would not reasonably be expected to have a Material Adverse Effect; and (ii) , with the Fundamental Representations shall be true and correct in all respects (except, in the case of the same effect as though such representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof were made at and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date)Closing, and Parent shall have received a certificate signed by an authorized officer the Chief Executive Officer of the Company, confirming dated the foregoing; andClosing Date, to the foregoing effect;
(b) the Company shall have performed and complied in all material respects with all obligations, covenants and agreements required by this Agreement to be performed or complied with by it at on or prior to the Closing; Closing Date, and Parent shall have received a certificate signed by an authorized officer the Chief Executive Officer of the Company, confirming dated the foregoingClosing Date, to the foregoing effect;
(c) there shall not be in effect any Law or Order restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) the consents and/or approvals of Governmental Bodies and other Persons listed on Schedule 8.1(d) shall have been obtained and evidence of such consents and/or approvals shall have been made available to Parent; and
(e) the waiting period or required approval applicable to the transactions contemplated by this Agreement under the HSR Act and the other applicable Competition Laws set forth on Schedule 8.1(e) shall have expired (or early termination shall have been granted) or been received.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations of Parent and Merger Xxxxxx Sub to consummate the transactions contemplated by this Agreement are Transactions is subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions precedent (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law):
(a) (i) the representations and warranties of the Company contained set forth in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating IV that are qualified as to materiality or Company Material Adverse Effect, Effect shall be true and correct in all respects as of the date hereof respects, and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), except where the failure of such representations and warranties to be those not so true and correct would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect; and (ii) the Fundamental Representations qualified shall be true and correct in all respects (exceptmaterial respects, in the each case both as of the Execution Date and as of the Closing as though made at and as of the Closing (except with respect to representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) Article IV that address matters only as of the date hereof an earlier date, in which case such representations and warranties qualified as of the Closing Date as if made to materiality or Company Material Adverse Effect shall be true and correct in all respects, and those not so qualified shall be true and correct in all material respects, on and as of the Closing Date (or, if given as of a specific date, at and as of such earlier date), and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing; and;
(b) the Company shall have performed and complied in all material respects with all obligations, covenants obligations and agreements required by in this Agreement to be performed or complied with by it at them on or prior to the Closing; and Closing Date;
(c) there shall not have occurred a Company Material Adverse Effect since the Balance Sheet Date that is pending or continuing;
(d) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the Transactions;
(e) Parent shall have received a certificate signed by an authorized officer the Chief Executive Officer of the Company, confirming each in form and substance reasonably satisfactory to Parent, dated the foregoingClosing Date, to the effect that each of the conditions specified above in Sections 7.1(a) and (b) have been satisfied in all respects;
(f) the Company shall have obtained or made any other Consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Body required to be obtained or made by it in connection with the execution and delivery of this Agreement or the consummation of the Transactions;
(g) the Company shall have obtained those Consents listed on Schedule 7.1(g) that the Company is required to obtain as indicated on Schedule 7.1(g), each such Consent to be in a form reasonably satisfactory to Parent and copies thereof shall have been delivered to Parent;
(h) the Company shall have received (and provided Parent with copies of) resignation letters executed and delivered by each of the officers and directors of the Company prior to the Effective Time, in each case effective as of the Effective Time;
(i) Parent shall have received:
(i) certificates of good standing dated not more than ten (10) Business Days prior to the Closing Date with respect to the Company, issued by the Secretary of State of the State of Delaware and for each state in which the Company is qualified to do business as a foreign corporation;
(ii) affidavits in a form reasonably acceptable to the Parent that the Company is not a U.S. real property holding corporation as defined in Section 897, and that no withholding is required under Section 1445 of the Code;
(iii) copies of the Company Board Approval, certified by the Secretary of the Company, as to the authorization of this Agreement and the Transactions;
(iv) copies of the Company Board Approval, certified by the Secretary of the Company, as to the termination of the 401(k) Plan of the Company;
(v) copies of each of the Initial Payment Allocation Schedule;
(vi) estimates of the Estimated Closing Date Net Free Cash Amount and the Estimated Unpaid Company Transaction Expenses as required by Section 3.7;
(vii) copies of payment and satisfaction in full of any intercompany Indebtedness (including Indebtedness between the Company and any of its Subsidiaries) in a form reasonably satisfactory to Parent;
(viii) copies of the Merger Certificate executed by the Company; and
(ix) such other customary documents as Parent shall reasonably request in good faith for the purpose of facilitating the consummation of the Merger and the other Transactions; and
(j) the Company Board Approval shall be in full force and effect. Stockholders holding at least (i) a majority of the outstanding shares of Company Preferred Stock (calculated on an as-converted basis) and (ii) a majority of the outstanding shares of Company Common Stock shall have approved this Agreement, the Merger and the other Transactions and such approval shall be in full force and effect. Stockholders holding not more than five percent (5%) of the outstanding shares of Company Capital Stock (calculated on an as-converted basis) shall have exercised, or have continuing rights to exercise, appraisal or dissenters’ rights under the DGCL with respect to the Transactions.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement Merger are subject to the satisfactionfulfillment, on or prior to the Closing DateClosing, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Lawpart):
(a) (i) each of the Specified Representations of the Company set forth in this Agreement that are qualified by materiality shall be true and correct, (ii) each of the Specified Representations of the Company set forth in this Agreement that are not so qualified shall be true and correct in all material respects, and (iii) each of the other representations and warranties of the Company contained set forth in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, this Agreement shall be true and correct in all respects as (without regard to materiality, Material Adverse Effect or similar phrases in the representations and warranties), in each case of the date hereof clauses (i), (ii) and (iii) as of the Closing Date as if though then made on (except for those representations and as of the Closing Date warranties which expressly relate to an earlier date (or, if given as of a specific date, at in which case such representations and warranties shall have been true and correct as of such earlier date)), except and except, in the case of clause (iii), where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have or reasonably be expected to not have a Material Adverse Effect; and (ii) the Fundamental Representations shall be true and correct in all respects (except, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), and Parent shall have received a certificate signed by an authorized executive officer of the Company, confirming dated the foregoing; andClosing Date, to the foregoing effect;
(b) the Company shall have performed and complied in all material respects with all obligations, covenants and agreements required by this Agreement to be performed or complied with by it at on or prior to the Closing; Closing (other than Section 7.11, the breach of which will not, in and of itself, give rise to a failure of this condition to be satisfied), and Parent shall have received a certificate signed by an authorized executive officer of the Company, confirming dated the foregoingClosing Date, to the foregoing effect;
(c) no Law or Order shall have been enacted, issued, adopted, entered, promulgated or enforced, as applicable, and no Legal Proceeding shall be pending, that seeks damages from the Company or any of its directors or officers in respect of the Merger or events giving rise thereto or would (i) prevent the consummation of any of the Transactions or the performance of this Agreement, or the other documents contemplated hereby, on the terms contemplated hereby and thereby, (ii) declare unlawful the Transactions or result in any of the Transactions being rescinded following consummation, or (iii) materially delay the consummation of the Transactions for more than sixty (60) days;
(d) the waiting period or regulatory approval applicable to the Transactions under the HSR Act and the other applicable Competition Laws set forth on Schedule 8.1(d) shall have expired (or early termination shall have been granted) or been received;
(e) the Company shall have delivered to Parent a certificate, duly completed and executed pursuant to Sections 1.897-2(h) and 1.1445-2(c) of the Treasury Regulations, certifying that the shares of capital stock of the Company are not United States real property interests within the meaning of Section 897(c) of the Code;
(f) the Written Consent shall have been executed and received by Parent;
(g) the Escrow Agent and the Representative shall have each executed and delivered signatures to the Adjustment Escrow Agreement to Parent; and
(h) since the date hereof, there shall not have been any event, change, occurrence or circumstance that has had a Material Adverse Effect.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The In addition, the obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement Merger are subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent Parent, in whole or in part part, to the extent permitted by applicable Law):
(a) (i) (A) the representations and warranties of the Company contained set forth in Article V IV of this Agreement (other than (x) Fundamental Company Representations, (y) the representations and warranties set forth in Section 5.1 4.2, and (Organization z) those other representations and Good Standing)warranties that address matters as of a specified date) shall be true and correct as of the Closing Date as though then made at and as of the Closing Date in all respects (without giving effect to materiality, Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect, or similar phrases in the representations and warranties) and (B) the representations and warranties of the Company set forth in Article IV of this Agreement that address matters as of a specified date (other than the Fundamental Company Representations and the representations and warranties set forth in Section 4.2) shall be true and correct as of such specified date in all respects (without giving effect to materiality, Company Material Adverse Effect, or similar phrases in the representations and warranties), in each case, except to the extent that the failure of such representations and warranties to be true and correct has not had and would not reasonably be to have, individually or in the aggregate a Company Material Adverse Effect, (ii) the Fundamental Company Representations shall be true and correct in all respects as of the date hereof and as of the Closing Date as if though made on at and as of the Closing Date (or, if given except for Fundamental Company Representations which address matters only as of a specific specified date, at which representations and warranties shall continue as of the Closing Date to be true and correct as of such datespecified date in all respects), except where and (iii) the failure of such representations and warranties to be so true and correct would not, individually or set forth in the aggregate, have or reasonably be expected to have a Material Adverse Effect; and (ii) the Fundamental Representations Section 4.2 shall be true and correct in all respects (except, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization), except for any de minimis inaccuracies) as of the date hereof and inaccuracy as of the Closing Date as if though made on at and as of the Closing Date (or, if given except for those representations and warranties which address matters only as of a specific specified date, at which representations and warranties shall continue as of the Closing Date to be true and correct in all respects except for any de minimis inaccuracy as of such datespecified date in all respects), and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing; and;
(b) the Company shall have performed and complied in all material respects with all obligations, covenants and agreements obligations required by this Agreement to be performed or complied with by it at on or prior to the Closing; Closing Date;
(c) the Equity Purchase Agreement (i) has been executed and delivered by the holders of Company Common Stock with aggregate commitments to purchase Parent Common Stock in the amount of $62,500,000 in accordance with the terms of the Equity Purchase Agreement and (ii) the holders of Company Common Stock shall remain committed to purchase Parent Common Stock in the amount of $62,500,000 as of the Closing Date in accordance with the terms of the Equity Purchase Agreement;
(d) Parent shall have received a certificate signed by an authorized officer of the Company, confirming dated the foregoingClosing Date, to the effect that the conditions specified in Sections 7.2(a), 7.2(b) and 7.2(c) are satisfied;
(e) the Company Shareholder Agreement shall have been terminated; and
(f) the consents set forth on Section 7.2(f) of the Company Disclosure Schedules shall have been obtained; and
(g) the Shareholder Agreement shall have been executed and delivered by each 5% Holder that is a Company Common Shareholder immediately prior to the Effective Time to Parent.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations obligation of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions precedent (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law):
(a) (i) the The representations and warranties of the Company contained in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, this Agreement shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Material Adverse Effect,” “in all respects material respects,” “in any material respect,” “material” or “materially”) as of the date hereof Closing as though made at and as of the Closing Date as if (except to the extent expressly made on and as of the Closing Date (or, if given as of a specific an earlier date, at and in which case as of such earlier date), except where the failure of any such representations and warranties to be so true and correct would notnot reasonably be expected to have, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect; and (ii) the Fundamental Representations shall be true and correct in all respects (except, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), and Parent shall have received a certificate signed by an authorized officer of the Company, confirming dated the foregoing; andClosing Date, to the foregoing effect;
(b) the representations and warranties of the Shareholders contained in this Agreement shall be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Material Adverse Effect,” “in all material respects,” “in any material respect,” “material” or “materially”) as of the Closing as though made at and as of the Closing (except to the extent expressly made as of another date, in which case as of such other date), except where the failure of any such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and Parent shall have received a certificate signed by the Shareholders’ Representative, dated the Closing Date, to the foregoing effect;
(c) the Company shall have performed and complied in all material respects with all obligations, covenants obligations and agreements required by this Agreement to be performed or complied with by it at on or prior to the Closing; Closing Date, and Parent shall have received a certificate signed by an authorized officer of the Company, confirming dated the foregoingClosing Date, to the foregoing effect;
(d) each of the Shareholders shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by them on or prior to the Closing Date, and Parent shall have received a certificate signed by the Shareholders’ Representative, dated the Closing Date, to the foregoing effect;
(e) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; it being agreed that the parties hereto shall promptly appeal any adverse determination which is not nonappealable (and pursue such appeal with reasonable diligence); provided, however, that this condition shall not be available to a party if such Order was primarily due to the failure of such party to perform any of its obligations under this Agreement;
(f) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted, and the Parties hereto shall have obtained approval under Section 39.158 of PURA and authorization under Section 203 of the Federal Power Act;
(g) the Company and its Subsidiaries shall not have suffered a Material Adverse Effect since the date of this Agreement; and
(h) each of Shareholders shall provide to Parent a certificate satisfying the requirements of Treasury Regulation Section 1.1445-2(b).
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations obligation of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent in whole or in part to the extent permitted by applicable Law):
(a) (i) the representations and warranties of the Company contained set forth in Article V this Agreement qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, at and as of the Closing Date (other than without regard to any supplement or amendment to the Schedules pursuant to Section 8.12) as though made on the Closing Date, except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date (without regard to any supplement or amendment to the Schedules pursuant to Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”8.12)), disregarding all qualifications and exceptions contained therein relating to materiality or in each case except as in the aggregate would not have a Material Adverse Effect, (ii) the representations and warranties of the Company set forth in Section 5.19(c) shall be true and correct in all respects as of the date hereof at and as of the Closing Date as if though made on and as of the Closing Date and (oriii) Parent shall have received a certificate signed by an authorized officer of the Company, if given as of a specific datedated the Closing Date, at to the foregoing effect;
(b) the Company shall have performed and as of such date), except where the failure of such representations and warranties complied in all material respects with all covenants required by this Agreement to be so true and correct would not, individually performed or in the aggregate, have complied with by them on or reasonably be expected prior to have a Material Adverse Effect; and (ii) the Fundamental Representations shall be true and correct in all respects (except, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date)Date, and Parent shall have received a certificate signed by an authorized officer of the Company, confirming dated the foregoingClosing Date, to the foregoing effect;
(c) there shall not be in effect any Law or Order restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act (and any similar Law enforced by any Governmental Antitrust Entity regarding preacquisition notifications for the purpose of competition reviews) shall have expired or early termination shall have been granted;
(e) Parent shall have received duly executed and acknowledged affidavits of the Company, in form substantially identical to those attached hereto as Exhibit A in accordance with Treasury Regulation Sections 1.1445-2(c)(3), 1,897-2(g) and 1.897-2(h), certifying that each "interest" being acquired by Parent in the Company (within the meaning of Section 897(c)(1) of the Code) is not a "United States real property interest" within the meaning of Section 897(c) of the Code;
(f) Parent shall have received final payoff certificates with respect to the Company Debt from the lender parties thereof (the "Payoff Certificates"); and
(bg) the Company there shall not have performed and complied in all material respects with all obligationsoccurred any event, covenants and agreements required by this Agreement change, occurrence or circumstance that has had or reasonably would be expected to be performed or complied with by it at or prior to the Closing; and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoingMaterial Adverse Effect.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations obligation of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions precedent (any or all of which may be waived by Parent and Merger Sub in whole or in part to the extent permitted by applicable Law):
(a) (i) the representations and warranties of the Company contained in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, Shareholder shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given except that to the extent such representations and warranties expressly speak as of a specific an earlier date, at they shall be true and correct only as of such earlier date), except where to the failure of such representations and warranties to be so true and correct would notextent that breaches thereof, individually or in the aggregate, have or not had, and would not reasonably be expected to have have, a Material Adverse Effect; and (ii) the Fundamental Representations shall be true and correct in all respects (except, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing; and;
(b) the Company shall have performed and complied in all material respects with all obligations, covenants obligations and agreements required by in this Agreement to be performed or complied with by it at them on or prior to the Closing; Closing Date;
(c) since the date hereof, there shall not have been or occurred any event, change, occurrence or circumstance that, individually or in the aggregate with any such events, changes, occurrences or circumstances, has had or would reasonably be expected to have a Material Adverse Effect;
(d) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(e) Parent and Parent Merger Sub shall have received a certificate signed by an authorized officer the Chief Executive Officer or Chief Financial Officer of the Company, confirming in form and substance reasonably satisfactory to Parent, dated the foregoingClosing Date, to the effect that each of the conditions specified above in Sections 6.1(a)-(d) have been satisfied in all respects;
(f) (i) to the extent applicable, the waiting period under the HSR Act shall have expired or early termination shall have been granted and the Company shall have obtained or made any other consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Body required to be obtained or made by it in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby and (ii) the Company shall have obtained all consents, waivers and approvals required for the consummation of the transactions herein in a form reasonably satisfactory to Parent;
(g) Parent shall have received the following items:
(i) copies of Board and shareholder resolutions, certified by the Secretary of the Company, as to the authorization of this Agreement and all of the transactions contemplated hereby;
(ii) a copy of an Assignment and Assumption Agreement pursuant to which certain extrusion equipment is transferred to the Company, duly executed by Xxxxxxx Properties, LLC in a form reasonably acceptable to Parent (“Assignment and Assumption Agreement);
(iii) a copy of the Employment Agreement, the form of which is attached hereto as Exhibit C (the “Employment Agreement”) duly executed by Shareholder;
(iv) copies of the resignations of the officers and directors of the Company;
(v) certificates of good standing dated not more than ten (10) Business Days prior to the Closing Date with respect to the Company issued by the Secretary of State of the State of Minnesota and for each state in which the Company is qualified to do business as a foreign corporation;
(vi) an opinion, dated as of the Closing Date, from counsel for the Company and Shareholder, substantially in the form attached hereto as Exhibit D provided, Parent shall pay up to $5000.00 of the reasonable cost of the Company in obtaining the opinion;
(vii) a copy of the Real Estate Lease, the form of which is attached hereto as Exhibit E, duly executed by Xxxxxxx Properties, LLC;
(viii) all necessary consents, if any, with respect to Material Contracts shall have been obtained and Parent shall have received satisfactory evidence thereof;
(ix) a certification of non-foreign status executed by Shareholder, meeting the requirements of Treasury Regulation Section 1.1445-2(b)(2);
(x) trademark and patent assignments for the Company’s trademark and patent rights;
(xi) releases from Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxxxx in form and substance reasonably satisfactory to Parent;
(xii) such certificates from the officers of the Company and the Shareholder as are reasonably required by Parent; and
(xiii) evidence that the Xxxxxx Bank UCC filing # 0000000 has been terminated; and
(h) Audited Financial Statements. Parent shall have received audited financial statements for the Company, prepared by Cross, Xxxxxxxxx and Xxxxx, LLP which satisfy the form 8-K filing requirements applicable to the transactions contemplated by this Agreement of the Securities and Exchange Commission and which do not materially differ from the Financial Statements and Balance Sheet; provided, however, that in determining whether such audited financial statements materially differ from the Financial Statements and the Balance Sheet, neither the lack footnotes nor any normal year-end adjustments in the Financial Statements and Balance Sheet shall be considered.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The respective obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfactionfulfillment, on or prior to the Closing Date, of each of the following conditions precedent (any or all of which may be waived by Parent and Merger Sub in whole or in part to the extent permitted by applicable Law):
(a) (i) the representations and warranties of the Company contained in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect; and (ii) the Fundamental Representations shall be true and correct in all respects (exceptdetermined without regard to any materiality or Material Adverse Effect qualifications contained in any representation or warranty), in the case of the representations and warranties of the Company in Section 5.4 (Capitalization)each case, for de minimis inaccuracies) as of the date hereof of this Agreement and as of the Closing Date as if though made at and as of the Closing, except to the extent such representations and warranties expressly speak as of an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of the Closing Date (or, if given as of a specific date, at and as of such earlier date), except for such inaccuracies which, in the aggregate, would not be reasonably likely to have a Material Adverse Effect, and Parent shall have received a certificate signed by an authorized officer of the CompanyCompany in his capacity as such, confirming dated as of the foregoing; andClosing Date, to the foregoing effect;
(b) the Company shall have performed and complied in all material respects with all obligations, covenants obligations and agreements required by in this Agreement to be performed or complied with by it at them on or prior to the Closing; Closing Date, and Parent shall have received a certificate signed by an authorized officer of the CompanyCompany in his capacity as such, confirming dated as of the foregoingClosing Date, to the foregoing effect;
(c) from the date hereof and prior to Closing, there shall not have been or occurred, and in either case, be continuing, any event, change, occurrence, circumstance or development that, individually or in the aggregate with any such events, changes, occurrences, circumstances or developments, has had or would reasonably be expected to have a Material Adverse Effect;
(d) there shall not be in effect any order, judgment or decree by a Governmental Entity of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(e) the Company shall have obtained (i) the Company Written Consent and (ii) the other consents set forth on Schedule 7.1(e), and shall have delivered copies of the same to Parent;
(f) the Company shall have delivered, or caused to be delivered, to Parent such items set forth in Section 3.2;
(g) Parent shall have received the proceeds from the debt financing contemplated by the Debt Commitment Letter;
(h) the waiting period (and any extension thereof) under the HSR Act applicable to the consummation of the Merger (and, if applicable, the transactions contemplated by the Backstop Securities Agreement) shall have expired or been terminated; and
(i) Any of the following: (I) Parent shall have received an amount of proceeds from the consummation of the Offering so that there is not a Parent Cash Shortfall after giving effect to such proceeds, (II) Parent shall have received proceeds from the consummation of the Offering and there is a Parent Cash Shortfall after giving effect to such proceeds and all of the conditions to the obligations of Parent contained in Section 5.2 of the Backstop Securities Agreement shall have been satisfied or waived by Parent, or (III) on or after the Backstop Date, the Offering has not been consummated and all of the conditions to the obligations of Parent contained in Section 5.2 of the Backstop Securities Agreement shall have been satisfied or waived by Parent.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction, on or prior to as of the Closing DateClosing, of each of the following conditions (any or all of which may be waived by Parent in writing in whole or in part to the extent permitted by applicable Law):
(a) (i) the representations and warranties of the Company contained in Article V (other than those in Section 5.1 (Organization and Good Standing)Sections 5.2, Section 5.2 (Authorization of Agreement)5.4, Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”5.8(i)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (other than, for the avoidance of doubt, the reference to “Material Adverse Effect” in Section 5.8(ii)), shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), except where to the extent that the failure of such representations and warranties to be so true and correct would notcorrect, individually or in the aggregate, have or has not had and would not reasonably be expected to have a Material Adverse Effect; and , (ii) the Fundamental Representations representations and warranties of the Company contained in Sections 5.2, 5.4 and 5.5(a) shall be true and correct in all respects (except, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization), for de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on and as of the Closing Date Date, except with respect to Section 5.4 for de minimis inaccuracies, and (or, if given iii) the representations and warranties of the Company contained in Section 5.8(i) shall be true and correct in all material respects as of a specific date, at the Closing Date as if made on and as of such date), the Closing Date; and Parent shall have received a an officer’s certificate signed by an authorized officer of the Company, Company confirming the foregoing; and;
(b) the Company shall have performed and complied in all material respects with all obligations, covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Closing; and Parent shall have received a an officer’s certificate signed by an authorized officer of the Company, Company confirming the foregoing;
(c) there shall not be in effect any Order by a Governmental Body of competent jurisdiction, or any applicable Law, restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) this Agreement and the Merger shall be been approved and adopted, pursuant to the Stockholder Consent, in accordance with applicable Law and the Company’s certificate of incorporation and by-laws;
(e) the Company shall have delivered a duly executed certificate certifying that the interest in the Company is not a United States real property interest (as defined in Section 897(c)(1) of the Code) in the form and manner that complies with Section 1445 of the Code and the Treasury Regulations promulgated thereunder and a notice in compliance with Treasury Regulations Section 1.897-2(h)(2); provided, that the sole right of Parent and Merger Sub if the Company fails to provide such certificate and notice, shall be to make an appropriate withholding under Sections 897 and 1445 of the Code;
(f) the Company shall have provided to Parent the executed payoff letters required to be provided in accordance with Section 7.12 and such payoff letters shall be in full force and effect subject only to Parent’s delivery of funds as specified therein at the Closing;
(g) (i) in the event of the Notes Redemption pursuant to Section 7.13(a), the Redemption Date (as defined in the Indenture) for the Notes shall be the Closing Date if Parent deposits with the Trustee for the Notes on the Closing Date the amount required to be deposited under Section 3.05 of the Indenture, or (ii) in the event of the Satisfaction and Discharge pursuant to Section 7.13(b), the Notes shall be capable of being satisfied and discharged on the Closing Date pursuant to Section 8.01 of the Indenture solely upon the deposit of U.S. Legal Tender or U.S. Government Obligations (as defined in the Indenture) as directed by the Trustee in accordance with Section 3.3 and Parent providing the written confirmation contemplated by the proviso to Section 7.13 to enable the Company to make the deliveries contemplated by Section 7.13;
(h) the Company and the Parent shall have received good faith assurance from the Staff of the SEC (which has not been withdrawn) reasonably acceptable to Parent that the Staff of the SEC will, upon the completion of the Notes Redemption or Satisfaction and Discharge, as the case may be, in accordance with Section 7.13, grant no-action relief or provide other assurance to the effect that the Company shall, immediately after the filing of a Form 15, cease to have any further reporting obligations under the Exchange Act;
(i) the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act shall have expired or early termination shall have been granted; and
(j) since the date of this Agreement, there shall not have occurred a Material Adverse Effect.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations obligation of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are Merger is subject to the satisfaction, on satisfaction at or prior to the Closing Date, of each of the following conditions (set forth below; provided, however, that, notwithstanding the failure of any one or all more of which such conditions, Parent and Merger Sub may be waived by Parent nevertheless proceed with the Closing without satisfaction, in whole or in part to the extent permitted by applicable Law):part, of any one or more of such conditions:
(a) (i) Each of the representations and warranties of the Company contained in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(a) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, herein shall be true and correct in all respects as of the date hereof respects, disregarding for these purposes any qualification or exception for materiality or Material Adverse Effect, on and as of the Closing Date with the same force and effect as if though the same had been made on and as of the Closing Date (or, if given except that representations and warranties that are made as of a specific date, at date need be true and correct in all respects only as of such date), except where the failure of such representations and warranties to be so true and correct does not have, individually or in the aggregate, a Material Adverse Effect; provided, that the representations and warranties of the Company contained in Section 3.4(c), Section 3.19 and Section 3.20(d) shall be true and correct in all respects and (ii) each of Parent's Subsidiaries that is subject to Rule 15c3-1 under the Exchange Act as of the close of business on the third Business Day prior to the Closing Date has Required Net Capital. In the event Section 3.17
(a) is untrue and such inaccuracy results in a greater than 10% reduction in either (i) the percentage of outstanding Shares subject to the Company Voting Agreement and the Datek Voting Agreement, taken together, or (ii) the percentage of outstanding shares of Parent Common Stock subject to the Stockholders Agreement and the Datek Stockholders Agreement, taken together, in each case the Company shall have cured such breach by procuring the agreement of additional holders of Shares to be bound by the terms of the Company Voting Agreement and the Stockholders Agreement such that (a) the total percentage of outstanding Shares subject to the Company Voting Agreement and the Datek Voting Agreement, taken together, is no less than 90% of the percentage of such Shares subject thereto on the date hereof and (b) the total percentage of outstanding shares of Parent Common Stock subject to the Stockholders Agreement and the Datek Stockholders Agreement, taken together, is no less than 90% of the percentage of such shares of Parent Common Stock subject thereto on the date hereof.
(b) All of the covenants and agreements required by this Agreement to have been performed and complied with by the Company and its Subsidiaries shall have been performed and complied with in all material respects prior to or on the Closing Date.
(c) No preliminary or permanent injunction or other Judgment of any court restraining or prohibiting the consummation of the transactions contemplated hereby shall be in effect. No material Proceedings shall have been instituted or threatened by (i) any Authority seeking to prohibit, restrict or delay, declare illegal or to enjoin or obtain Damages from Parent in respect of, the consummation of the transactions contemplated hereby or by the Related Agreements or (ii) any other Person which, in the case of this clause (ii), would be reasonably likely to cause a Material Adverse Effect with respect to the Company and Parent, taken as a whole.
(d) Parent shall have received (i) the Required Parent Vote with respect to the Parent Charter Amendment and, if applicable, the Parent Share Issuance, (ii) the UK Treasury Consent, if required, (iii) all consents, approvals or orders of any Authority or Self-Regulatory Organization, (iv) all consents, approvals or orders of any other third party the granting of which is required for the consummation of the transactions contemplated herein or for the Parent or the Company and their respective Subsidiaries to conduct their business after the Closing Date in substantially the same manner as currently conducted (except, in the case of clause (iii) or (iv), to the extent failure to have received any such consent, approval or order would not, individually or in the aggregate, be material to the business of the Company and Parent taken as a whole), and (v) all waiting periods the expiration of which is required under applicable Legal Requirements, including under the HSR Act, shall have expired or reasonably be expected been terminated.
(e) Parent shall receive (i) a certificate, dated the Closing Date, from the Company as to have its compliance with the conditions set forth in Sections 5.1(a) and 5.1(b) executed by a Material Adverse Effect; duly authorized officer of the Company and (ii) a certificate from the Fundamental Representations chief financial officer of the Company computing the Net Capital as of the close of business on the third Business Day prior to Closing Date of each of the Company Broker-Dealer Subsidiaries.
(f) Each of the other Related Agreements to be entered into after the date hereof shall have been duly executed and delivered by each of the parties thereto (other than Parent, Merger Sub, or any of their controlled Affiliates) and each of the Related Agreements shall be in full force and effect and shall constitute the legal, valid and binding obligations of the parties thereto, enforceable against such parties in accordance with their terms. Each of the representations and warranties of the parties thereto (other than Parent, Merger Sub, or any of their controlled Affiliates) contained therein shall be true and correct in all respects (exceptrespects, in the case of the representations and warranties of the Company in Section 5.4 (Capitalization)disregarding for these purposes any qualification or exception for materiality or Material Adverse Effect, for de minimis inaccuracies) as of the date hereof on and as of the Closing Date with the same force and effect as if though the same had been made on and as of the Closing Date (or, if given except that representations and warranties that are made as of a specific date, at date need be true and correct in all respects only as of such date), except where the failure of such representations and Parent shall have received warranties to be so true and correct does not have, individually or in the aggregate, a certificate signed by an authorized officer Material Adverse Effect. All of the Company, confirming the foregoing; and
(b) the Company shall have performed and complied in all material respects with all obligations, covenants and agreements required by this the Company Voting Agreement and the Datek Voting Agreement to be have been performed or and complied with by it at or the Company, the Voting Holders and Datek shall have been performed and complied with in all material respects prior to or on the Closing; Closing Date and Parent shall have received receive a certificate signed by an authorized officer of certificate, dated the CompanyClosing Date, confirming the foregoingfrom each Voting Holder and Datek, as to its compliance with its covenants and agreements thereunder.
Appears in 1 contract
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB. The obligations of Parent and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Parent and Merger Sub in whole or in part to the extent permitted by applicable Law):
(a) (i) the representations and warranties of the Company contained in Article V (other than in Section 5.1 (Organization and Good Standing), Section 5.2 (Authorization of Agreement), Section 5.4 (Capitalization), the second sentence of Section 5.5(awithout giving effect to any limitations as to materiality) (Subsidiaries) and Section 5.20 (Financial Advisors) (collectively, the “Fundamental Representations”)), disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all respects as of the date hereof Closing as though made at and as of the Closing Date as if made Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct on and as of the Closing Date (or, if given as of a specific date, at and as of such earlier date), except where the failure of such the representations and warranties to be so true and correct would notcorrect, individually or in the aggregate, have or has not been, and would not reasonably be expected to have a Material Adverse Effect; and (ii) the Fundamental Representations shall be true and correct in all respects (exceptbe, in the case of the representations and warranties of material to the Company in Section 5.4 (Capitalization)and its Subsidiaries, for de minimis inaccuracies) taken as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (or, if given as of a specific date, at and as of such date), and Parent shall have received a certificate signed by an authorized officer of the Company, confirming the foregoing; andwhole;
(b) the Company shall have performed and complied in all material respects with all obligations, covenants obligations and agreements required by in this Agreement to be performed or complied with by it at or prior to the Closing; Closing Date, and Parent shall have received copies of such corporate resolutions and other documents evidencing the performance thereof as Parent may reasonably request;
(c) there shall not have been any Material Adverse Effect since the date of this Agreement;
(d) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(e) Parent shall have received a certificate signed by an authorized officer each of the Chief Executive Officer and General Counsel of the Company, confirming each in form and substance reasonably satisfactory to Parent, dated the foregoingClosing Date, to the effect that each of the conditions specified above in Sections 8.1(a)-(c) have been satisfied in all respects;
(f) the Company shall have obtained all consents, waivers and approvals referred to in Schedule 8.1(f), each such consent, waiver and approval being in form and substance reasonably satisfactory to Parent and not requiring as a term thereof or condition thereto any adverse condition or requirement on the conduct of business by the Company, any of its Subsidiaries, Parent or any of its subsidiaries;
(g) this Agreement, the Merger, the COI Amendment and the other transactions contemplated hereby will have been authorized, approved and consented to by (i) the Company Stockholder Approval and (ii) shares of Preferred Stock entitled to receive eighty percent (80%) of the Preferred Stock Merger Consideration, pursuant to the Aggregate Consideration Spreadsheet, and all written consents obtained thereby will not have been rescinded, cancelled or withdrawn and will be obtained in compliance with, and are valid and effective under, Section 228 of the DGCL;
(h) Parent shall have received written resignations of each of the directors of the Company;
(i) each officer and director of the Company that holds capital stock of the Company shall have duly entered into, executed and delivered to Parent the release agreement, substantially in the form attached hereto as Exhibit D;
(j) the Non-Competition Agreement, substantially in the form attached hereto as Exhibit E-2, shall have been entered into by (i) each of the employees set forth on Schedule 8.1(j) under the heading “Required Non-Compete Agreements” and (ii) 90% of the total number of employees set forth on Schedule 8.1(j), and such agreements shall remain in full force and effect; provided, however, that for purposes of calculating 90%, if a Person set forth on Schedule 8.1 (j) terminates his or her employment with the Company prior to the Closing, the numerator and denominator used to calculate this percentage will both be reduced accordingly;
(k) Parent, the Escrow Agent and the Stockholder Representative shall have duly entered into, executed and delivered to the other party thereto the Escrow Agreement, substantially in the form of Exhibit B (with such changes as may be required by the Escrow Agent);
(l) the Company Plans with respect to all Company Stock Options shall have terminated and each holder of a Company Stock Option to purchase shares of capital stock of the Company shall have either exercised such option and purchased such shares of capital stock or such option shall be cancelled and null and void under its terms or the terms of the plan pursuant to which it was granted. Each outstanding warrant issued by the Company shall have been exercised or the holder thereof shall have delivered to the Company an instrument canceling such warrant in form and substance satisfactory to Parent or such warrant shall have expired by its own terms;
(m) the Company shall have delivered, or caused to be delivered, to Parent certificates of good standing as of a recent date with respect to the Company issued by the Secretary of State of the State of Delaware and for each state in which the Company is qualified to do business as a foreign corporation; and
(n) The Company shall have adopted the Employee Retention Plan attached hereto as Exhibit F and shall make awards thereunder but only to the extent that such awards do not result in a parachute payment as defined in Section 280G of the Code as a result of the transactions contemplated hereby.
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