Conditions Precedent to the Obligations of Parent and Merger Sub. All obligations of Parent and Merger Sub under this Agreement are subject to the fulfillment, prior to or at the Closing, of each of the following conditions: (a) The representations and warranties by AMHN contained in this Agreement or in any certificate or document delivered pursuant to the provisions hereof shall be true and correct in all material respects at and as of the Closing as though such representations and warranties were made at and as of such times. (b) AMHN shall have performed and complied with, in all material respects, all covenants, agreements, and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing; (c) The directors and the shareholders of AMHN shall have approved in accordance with applicable state corporation law the execution and delivery of this Agreement and the consummation of the transactions contemplated herein. (d) AMHN shall deliver an opinion of its legal counsel to the effect that: (i) AMHN is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation; (ii) This Agreement has been duly authorized, executed and delivered by AMHN and the Major Shareholders and is a valid and binding obligation of AMHN and the Major Shareholders enforceable in accordance with its terms; (iii) The Board of Directors and stockholders of AMHN have taken all corporate action necessary for performance under this Agreement; and (iv) AMHN has the corporate power to execute, deliver and perform under this Agreement. (v) All of the shares of AMHN capital stock that are currently issued and outstanding are validly issued, fully paid and nonassessable. (e) AMHN shall have delivered verified assurances in form and substance acceptable to Parent and Merger Sub that at Closing AMHN has at least seventy-five (75) office locations with confirmation of commitments of carriage for AMHN content.. (f) AMHN shall have received assurances from the Major Shareholders, in form reasonably satisfactory to Parent, of up to $500,000 funding to be made available to AMHN if and as needed to assure not less than six (6) months of the Company’s operations. (g) Prior to the Closing, Parent shall have effected the Share Cancellation, and, immediately after giving effect to the Closing, shall issue to the Canceling Shareholder the New Post Merger Shares having the piggy-back registration rights that are set forth in the Form of Registration Rights Agreement attached hereto as Exhibit C.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Croff Enterprises Inc)
Conditions Precedent to the Obligations of Parent and Merger Sub. All Unless waived, in whole or in part, by Parent and Merger Sub in writing, the obligations of Parent and Merger Sub under to consummate the transactions contemplated by this Agreement are shall be subject to the fulfillment, satisfaction prior to or at the Closing, Effective Time of each and all of the following conditionsconditions precedent:
(a) The representations and warranties made by AMHN contained the Company set forth in this Agreement or in any certificate or document delivered pursuant to the provisions hereof shall be true and correct Article 4 shall, in all material respects at respects, be correct and complete as of the Closing Termination Date, as though such representations and warranties were if made at and as of such timestime (without taking into account any disclosures by the Company or any other party hereto of discoveries, events or occurrences arising on or after the date hereof), except for changes permitted by this Agreement and except that any such representation or warranty made as of a specified date shall only need to have been true on and as of such date.
(b) AMHN The Company shall have performed and complied with, in all material respects, all respects its covenants, agreements, agreements and conditions required by obligations under this Agreement that are required to be performed or complied with by it at or prior to or at the Closing;Effective Time.
(c) The directors and the shareholders of AMHN There shall have approved occurred no Material Adverse Effect to the Company from the date hereof to the Termination Date.
(d) No administrative or judicial suit or proceeding shall be instituted or pending on or prior to the Termination Date in accordance with applicable state corporation law which it is sought (or, in the execution and delivery case of this Agreement and a threatened suit or proceeding, in which it is reasonable to conclude that it may be sought), by any Person, (i) to make illegal, or to delay or otherwise directly or indirectly restrain or prohibit the consummation of the transactions contemplated hereinhereby or by the Certificate of Merger or seeking to obtain material damages in connection with such transactions, (ii) to invalidate or render unenforceable any material provision of this Agreement or the Certificate of Merger or (iii) to take any other action otherwise relating to and materially adversely affecting the transactions contemplated hereby or by the Certificate of Merger.
(de) AMHN The Company shall deliver an opinion have obtained Stockholder Approval.
(f) Parent shall have received letters of its legal counsel resignation, dated effective as of the Effective Time from the officers and directors of the Company.
(g) The Company shall have executed and delivered, or caused to be executed and delivered, the effect thatfollowing items, and such items shall be reasonably satisfactory in form to Parent and Merger Sub:
(i) AMHN is a corporation the Certificate of Merger, duly incorporated, validly existing and executed by the Company in good standing under the laws of the state of its incorporationform required by Section 2.3;
(ii) This Agreement has a certificate of the Chief Operating Officer of the Company, dated as of the Effective Date, stating that the conditions set forth in subsections (a) and (b) above have been duly authorized, executed and delivered by AMHN and the Major Shareholders and is a valid and binding obligation of AMHN and the Major Shareholders enforceable in accordance with its termssatisfied;
(iii) The Board the opinion of Directors and stockholders of AMHN have taken all corporate action necessary for performance under this Agreement; andShearman & Sterling substantially in the form attached hereto as EXHIBIT 7.1(G)(III);
(iv) AMHN has the minute books, stock transfer records, corporate seal and other materials related to the corporate power to execute, deliver and perform under this Agreement.administration of the Company;
(v) All a certificate of good standing of the shares Company from the Secretary of AMHN capital stock that are currently issued and outstanding are validly issued, fully paid and nonassessable.State of the State of Delaware;
(evi) AMHN shall have delivered verified assurances in form a copy of each of (A) the resolutions adopted by the board of Directors the Company, authorizing the execution, delivery and substance acceptable performance of this Agreement and the Merger; (B) the bylaws of the Company; and (C) if applicable, the minutes of the meeting of the stockholders of the Company at which this Agreement and the Certificate of Merger was approved; along with certificates executed on behalf of the Company by its corporate secretary certifying to Parent and Merger Sub that at Closing AMHN has such copies are true, correct and complete copies of such resolutions and bylaws, respectively, and that such resolutions and bylaws were duly adopted and have not been amended or rescinded;
(vii) A properly executed statement (a "FIRPTA Compliance Certificate") in a form prepared by Parent and delivered to the Company at least seventytwo (2) days prior to the Closing for purposes of satisfying Parent's obligations under Treasury Regulation Section 1.1445-five (75) office locations with confirmation of commitments of carriage for AMHN content..2(c)(3);
(fviii) AMHN Copies of invoices from each of Shearman & Sterling, PricewaterhouseCoopers and any other third party who assisted the Company in the negotiation and preparation of this Agreement, which such invoices shall have received assurances from include all amounts payable by the Major Shareholders, in form reasonably satisfactory Company or the Surviving Corporation after the Effective Time for services rendered by such parties prior to Parent, of up to $500,000 funding to be made available to AMHN if and as needed to assure not less than six (6) months of the Company’s operations.Effective Time; and
(gix) Prior such other certificates, documents and instruments as Parent and Merger Sub may reasonably request to effect the Closing, Parent shall have effected transactions contemplated by this Agreement and the Share Cancellation, and, immediately after giving effect to the Closing, shall issue to the Canceling Shareholder the New Post Merger Shares having the piggy-back registration rights that are set forth in the Form Certificate of Registration Rights Agreement attached hereto as Exhibit C.Merger.
Appears in 1 contract
Conditions Precedent to the Obligations of Parent and Merger Sub. All obligations of Parent and Merger Sub under this Agreement are subject to the fulfillment, prior to or at the Closing, of each of the following conditions:
(a) The representations and warranties by AMHN the Company contained in this Agreement or in any certificate or document delivered pursuant to the provisions hereof shall be true and correct in all material respects at and as of the Closing as though such representations and warranties were made at and as of such times.
(b) AMHN The Company shall have performed and complied with, in all material respects, all covenants, agreements, and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing;.
(c) The directors and the shareholders of AMHN Company shall have approved in accordance with applicable state corporation law the execution and delivery received subscriptions from investors to purchase at least $5,000,000 of this Agreement and the consummation shares of the transactions contemplated hereincommon stock of the Surviving Corporation in the Equity Financing.
(d) AMHN No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger shall be in effect.
(e) The Company shall deliver to Parent financial statements meeting the requirements of 3-05 of Regulation S-X promulgated under the Securities Act and the Exchange Act.
(f) The Company shall deliver an opinion of its legal counsel to the effect that:
(i) AMHN The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation;
(ii) This Agreement has been duly authorized, executed and delivered by AMHN and the Major Shareholders and is a valid and binding obligation of AMHN and the Major Shareholders enforceable in accordance with its termsCompany;
(iii) The Board of Directors and stockholders of AMHN the Company have taken all corporate action necessary for performance under this Agreement; and;
(iv) AMHN The authorized capital stock of Company shall consist of 100,000,000 shares of Company Common Stock, of which XX (the actual number to be listed in the opinion) shares are issued and outstanding, and, except as set forth in the Private Placement Memorandum or this Agreement, there are no existing options, convertible or exchangeable securities, calls, claims, warrants, preemptive rights, registration rights or commitments of any character relating to the issued or unissued capital stock or other securities of the Company;
(v) The Company has the corporate power to execute, deliver and perform under this Agreement.; and
(vvi) All Legal counsel for Company is not aware of the shares of AMHN capital stock that are currently issued and outstanding are validly issuedany liabilities, fully paid and nonassessable.
(e) AMHN shall have delivered verified assurances in form and substance acceptable to Parent and Merger Sub that at Closing AMHN has at least seventy-five (75) office locations with confirmation of commitments of carriage for AMHN content..
(f) AMHN shall have received assurances from the Major Shareholders, in form reasonably satisfactory to Parent, of up to $500,000 funding to be made available to AMHN if and as needed to assure not less than six (6) months of claims or lawsuits involving the Company’s operations.
(g) Prior to the Closing, Parent shall have effected the Share Cancellation, and, immediately after giving effect to the Closing, shall issue to the Canceling Shareholder the New Post Merger Shares having the piggy-back registration rights that are set forth in the Form of Registration Rights Agreement attached hereto as Exhibit C.
Appears in 1 contract
Conditions Precedent to the Obligations of Parent and Merger Sub. All obligations of Parent and Merger Sub under this Agreement are subject to the fulfillment, prior to or at the ClosingClosing and/or the Effective Time, of each of the following conditions:
(a) The representations and warranties by AMHN the Company contained in this Agreement or in any certificate or document delivered pursuant to the provisions hereof shall be true and correct in all material respects at and as of the Closing and the Effective Time as though such representations and warranties were made at and as of such times.
(b) AMHN The Company shall have performed and complied with, in all material respects, all covenants, agreements, and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing;.
(c) The directors At the Closing, except as designated upon mutual agreement by the Parent and the shareholders of AMHN shall have approved in accordance with applicable state corporation law the execution and delivery of this Agreement and the consummation Company, all of the transactions contemplated hereincurrent officers and managers of the Company shall resign in writing from their positions as officers and managers of the Company, and all current officers of the Parent shall continue in their positions as officers of the Company.
(d) AMHN At the Closing, unless otherwise waived by the Company, the Parent Required Approvals shall deliver an opinion of its legal counsel to the effect that:
(i) AMHN is a corporation duly incorporated, validly existing have been received and in good standing under the laws of the state of its incorporation;
(ii) This Agreement has been duly authorized, executed and delivered by AMHN and the Major Shareholders and is a valid and binding obligation of AMHN and the Major Shareholders enforceable in accordance with its terms;
(iii) The Board of Directors and stockholders of AMHN have taken all corporate action necessary for performance under this Agreement; and
(iv) AMHN has the corporate power to execute, deliver and perform under this Agreement.
(v) All of the shares of AMHN capital stock that are currently issued and outstanding are validly issued, shall be fully paid and nonassessableeffective.
(e) AMHN shall have delivered verified assurances in form and substance acceptable to Parent and Merger Sub that Unless waived by the Company, at Closing AMHN has at least seventy-five (75) office locations with confirmation of commitments of carriage for AMHN content..the Parent Debt Restructuring and the Company Debt Restructuring shall be completed to the Company’s satisfaction.
(f) AMHN Parent shall have received assurances from been furnished with evidence that the Major Shareholders, Company has amended employment agreements with such Company employees as required by Parent in form reasonably satisfactory forms acceptable to Parent, of up to $500,000 funding to be made available to AMHN if and as needed to assure not less than six (6) months of the Company’s operations.
(g) Prior The issuance of the shares of Parent capital stock to the Closingholders of Company Units at Closing shall be approved by the NYSE MKT, Parent shall have effected the Share Cancellation, and, immediately after giving effect subject where applicable to the Closing, shall issue to approval of the Canceling Shareholder stockholders of the New Post Merger Shares having Parent for the piggy-back registration rights that are set forth in conversion of the Form of Registration Rights Agreement attached hereto as Exhibit C.Parent Series B Convertible Preferred Stock.
Appears in 1 contract
Samples: Merger Agreement (Pedevco Corp)
