Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction of the following conditions immediately prior to the Effective Time (any or all of which may be waived by Buyer to the extent permitted by applicable Legal Requirements): (a) the representations and warranties set forth in Sections 5 and 6 of this Agreement shall have been true and correct as of the date of this Agreement and as of the Closing Date (except for representations and warranties that speak as of another specific which only need be true and correct as of such date) except for: (i) such inaccuracies (without regard to qualifications regarding material adversity or Material Adverse Effect) as, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; and (ii) changes contemplated by this Agreement or resulting from any action or inaction expressly consented to in writing by Buyer; (b) the Company shall have performed in all material respects all of the covenants and agreements required to be performed by it under this Agreement prior to the Closing; (c) no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred, between the date of this Agreement and the Closing Date, that, individually or in the aggregate, has had a Material Adverse Effect; (d) the Company shall have delivered to Buyer each of the following: (i) a certificate of the Company, dated as of the Closing Date, stating that the conditions specified in Sections 10.1(a) and 10.1(b), have been satisfied; and (ii) a certificate of the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate; (iii) payoff letters, in form and substance reasonably satisfactory to Buyer, from all holders of Closing Indebtedness (and the Company shall have made arrangements reasonably satisfactory to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as of the Closing, including without limitation, in respect of any Encumbrances listed on Schedules 5.5(c) or 6.3); (iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained or made for the consummation of the transactions contemplated hereby, including without limitation the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv); (v) such Consents as are required to be obtained or made for the consummation of the transactions contemplated hereby pursuant to any Material Contracts, if listed on Schedule 10.1(d)(v); (vi) an affidavit, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7; (e) the Representative, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement; (f) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008; (g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer; (h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h). (i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer; (j) if Company shall have delivered, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby; (k) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall have been terminated with respect to the Company and its Subsidiaries prior to the Closing Date; (l) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld; (m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time; (n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated this Agreement on or before the date that is 10 Business Days after the date hereof; (o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders; (p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p); (q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and (r) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyer.
Appears in 1 contract
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement Closing Transactions are subject to the satisfaction (or waiver by Buyer and Merger Sub in writing) of the following conditions immediately prior to as of the Effective Time (any or all time of which may be waived by Buyer to the extent permitted by applicable Legal Requirements):Closing:
(a) the The representations and warranties set forth in Sections 5 Article VII that are qualified as to materiality will be true and 6 of this Agreement shall have been correct, and those not so qualified will be true and correct in all material respects, at and as of the time of the Closing, as if made on the Closing Date and as if the Closing Date were substituted for the date of this Agreement and as of the Closing Date (except for throughout such representations and warranties that speak as of another specific which only need be true and correct as of such date) except for: (i) such inaccuracies (without regard to qualifications regarding material adversity or Material Adverse Effect) as, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; and (ii) changes contemplated by this Agreement or resulting from any action or inaction expressly consented to in writing by Buyerwarranties;
(b) the The Company shall will have performed and complied in all material respects with all of the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) no No judgment, decree, injunction or order of any Governmental Entity of competent jurisdiction shall be in effect as of the Closing that restrains or prevents the consummation of the transactions contemplated by this Agreement, and there shall not be any Legal Requirement enacted or deemed applicable to this Agreement that makes consummation of the transactions contemplated by this Agreement illegal;
(d) No action or proceeding shall be pending before any Governmental Entity seeking a judgment, decree, injunction or order that would restrain or prevent the consummation of the Closing Transactions;
(e) There shall not have been or occurred, since December 31, 2012, any event, change, event, occurrence, effect, development, condition, circumstance, matter occurrence or state of facts shall have occurred, between the date of this Agreement and the Closing Date, that, individually or in the aggregate, circumstance that has had a Material Adverse Effect;
(df) The Merger shall have been approved by the requisite vote of the Members, and Members holding a Percentage Share of less than ten percent (10%) shall hold Dissociating Units (as contemplated by Section 4.3);
(g) On or prior to the Closing Date, the Company shall will have delivered to Buyer each all of the following:
following (i) a certificate of the Company, dated as of the Closing Date, stating that except as otherwise indicated):
(i) Copies of all Consents set forth on Schedule 5.2(g)(i) (the conditions specified in Sections 10.1(a) and 10.1(b“Required Consents”), have been satisfied; and;
(ii) a certificate Payoff letters relating to the Debt, which shall include the release of the Companyall Liens, dated as of the Closing Dateexcept for Permitted Liens, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificaterelated thereto;
(iii) payoff lettersA certificate, in form and substance reasonably satisfactory dated not earlier than five (5) days prior to Buyerthe Closing Date, from all holders of Closing Indebtedness (and the State of Wisconsin Department of Financial Institutions stating that the Company shall have made arrangements reasonably satisfactory to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as of the Closing, including without limitation, is in respect of any Encumbrances listed on Schedules 5.5(c) or 6.3)active status;
(iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained or made for A certificate from the consummation Company certifying that each of the transactions contemplated hereby, including without limitation conditions set forth in Sections 5.2(a) and 5.2(b) has been and is satisfied as of the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv)time of the Closing;
(v) such Consents as are required to be obtained A certificate from the Secretary or made for the consummation an Assistant Secretary of the transactions contemplated hereby pursuant to any Material Contracts, if listed on Schedule 10.1(d)(v)Company certifying that the Merger has been approved by the requisite vote of the Members;
(vi) an affidavitEvidence reasonably acceptable to Buyer evidencing the termination, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion Effective Time, of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required Agreements to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7Terminated;
(evii) the Representative, the Company and the Escrow Agent shall have executed and delivered the The Indemnity Escrow Agreement, duly executed by Members’ Representative;
(fviii) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation shall have A FIRPTA certificate duly executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which by the Company shall have assigned certifying as to Ntrepid all of its right, title and interest the matters set forth in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008Treasury Reg. § 1.1445-11T(d)(2);
(gix) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any A legal opinion of its Subsidiaries shall have any ownership rights Xxxxxxx & Xxxxx LLP in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h).
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to BuyerE attached hereto;
(jx) if Company shall have deliveredThe Employment and Non-Competition Agreements duly executed by each of Xxxxx Xxxxx, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6Xxxxx Xxxxxxxxx, Buyer shall not have given notice to the Company or the Shareholders thatXxxxx Del Cioppo, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated herebyand Merije Ajvazi;
(kxi) all Tax sharing agreements or similar arrangements involving the Company or any The Non-Competition, Non-Solicitation and Confidentiality Agreements duly executed by each of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall have been terminated with respect to the Company Xxxx Xxxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx, Xxx Xxx, Xxx Xxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxxxxx, Xxxxx Del Cioppo, and its Subsidiaries prior to the Closing DateMerije Ajvazi;
(lxii) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated this The Member Closing Agreement on or before the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have duly executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been releasedeach Member; and
(rxiii) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and Such other documents required or instruments as Buyer reasonably requests and as are reasonably necessary to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyerby this Agreement.
Appears in 1 contract
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement Transactions, including the Merger, are also subject to the satisfaction of the following conditions immediately prior to the Effective Time (any or all of which may be waived by Buyer or, to the extent permitted by applicable Legal Requirements):Law, waiver in writing by Buyer) of each of the following conditions at or prior to the Closing:
(a) (i) the representations and warranties set forth in Sections 5 Article III (other than the Fundamental Representations and 6 the representation and warranty set forth in clause (ii) of this Agreement shall have been the first sentence of Section 3.07) are true and correct as of the date of this Agreement and as of the Closing Date (disregarding all qualifications or limitations as to "materiality," "in all material respects" or "Material Adverse Effect" and words of similar import set forth therein) as though such representations and warranties had been made on and as of the Closing Date (except for that representations and warranties that speak are made as of another specific which only a specified date need be true and correct only as of such date) ), except for: in each case under this clause (i) such inaccuracies (without regard ), as has not had, and would not reasonably be expected to qualifications regarding material adversity or Material Adverse Effect) ashave, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; and a Material Adverse Effect, (ii) changes contemplated by the Fundamental Representations set forth in Article III are true and correct in all material respects as of the date of this Agreement or resulting from any action or inaction expressly consented to and as of the Closing Date as though such representations and warranties had been made on and as of the Closing Date, and (iii) the representation and warranty set forth in writing by Buyerclause (ii) of the first sentence of Section 3.07 is true and correct as of the date of this Agreement and as of the Closing Date as though such representation and warranty had been made on and as of the Closing Date;
(b) the Company shall have has performed and complied with in all material respects all of the covenants and agreements required to be performed and complied with by it under this Agreement at or prior to the Closing;
(c) no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred, between the date of this Agreement and the Closing Date, that, individually or in the aggregate, has had a Material Adverse Effect;
(d) the Company shall have has delivered to Buyer each of the following:
(i) and Merger Sub a certificate of the Company, in the form of Exhibit F and dated as of the Closing Date, stating that the conditions specified set forth in Sections 10.1(aSection 7.02(a) and 10.1(b), Section 7.02(b) have been satisfied; and
(iid) a certificate of Buyer has received all deliverables or signatures required to be delivered by the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate;
(iii) payoff letters, in form and substance reasonably satisfactory to Buyer, from all holders of Closing Indebtedness (and the Company shall have made arrangements reasonably satisfactory to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as of the Closing, including without limitation, in respect of any Encumbrances listed on Schedules 5.5(c) or 6.3);
(iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained or made for the consummation of the transactions contemplated hereby, including without limitation the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv);
(v) such Consents as are required to be obtained or made for the consummation of the transactions contemplated hereby pursuant to any Material Contracts, if listed on Schedule 10.1(d)(v);
(vi) an affidavit, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7;
(e) the Representative, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(f) the CompanyTen-X or Xxxxxxx.xxx, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h)LLC under Section 2.02.
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer;
(j) if Company shall have delivered, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
(k) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall have been terminated with respect to the Company and its Subsidiaries prior to the Closing Date;
(l) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated this Agreement on or before the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and
(r) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyer.
Appears in 1 contract
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement Transactions, including the Merger, are subject to the satisfaction (or waiver in writing by Buyer) of each of the following conditions immediately prior to at the Effective Time (any or all of which may be waived by Buyer to the extent permitted by applicable Legal Requirements):Closing:
(a) (i) the representations and warranties set forth in Sections 5 Article III (other than the Fundamental Representations and 6 the representation and warranty set forth in clause (ii) of this Agreement shall have been the first sentence of Section 3.07, but including the representations and warranties set forth in Section 3.10) (disregarding all qualifications or limitations as to “materiality,” “in all material respects” or “Material Adverse Effect” and words of similar import set forth therein) are true and correct as of the date of this Agreement and as of the Closing Date as though such representations and warranties had been made on and as of the Closing Date (except for that representations and warranties that speak are made as of another specific which only a specified date need be true and correct only as of such date) ), except for: (i) such inaccuracies (without regard as has not had, and would not reasonably be expected to qualifications regarding material adversity or Material Adverse Effect) ashave, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; and a Material Adverse Effect, (ii) changes contemplated by the Fundamental Representations set forth in Article III (other than the representations and warranties set forth in Section 3.10) are true and correct in all material respects as of the date of this Agreement or resulting from any action or inaction expressly consented to and as of the Closing Date as though such representations and warranties had been made on and as of the Closing Date, and (iii) the representation and warranty set forth in writing by Buyerclause (ii) of the first sentence of Section 3.07 is true and correct in all respects as of the date of this Agreement and as of the Closing Date as though such representation and warranty had been made on and as of the Closing Date;
(b) the Company shall have has performed in all material respects all of the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred, between the date of this Agreement and the Closing Date, that, individually or in the aggregate, has had a Material Adverse Effect;
(d) the Company shall have has delivered to Buyer each of the following:
(i) and Merger Sub a certificate of the Company, in the form of Exhibit I and dated as of the Closing Date, stating that the conditions specified set forth in Sections 10.1(aSection 7.02(a) and 10.1(b), Section 7.02(b) have been satisfied; and
(ii) a certificate of the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate;
(iiid) payoff letters, in form and substance reasonably satisfactory to Buyer, from all holders of Closing Indebtedness (and the Company shall have made arrangements reasonably satisfactory has delivered to Buyer for such holders of Closing Indebtedness to deliver and Merger Sub the Payoff Letters and all related Encumbrance releases to Buyer effective as of the Closing, including without limitation, in respect of any Encumbrances listed on Schedules 5.5(c) or 6.3);
(iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained delivered at or made for the consummation of the transactions contemplated hereby, including without limitation the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv);
(v) prior to Closing related to such Consents as are required termination referred to be obtained or made for the consummation of the transactions contemplated hereby pursuant to any Material Contracts, if listed on Schedule 10.1(d)(v);
(vi) an affidavit, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.75.08;
(e) the RepresentativeCompany has delivered to Buyer and Merger Sub evidence of the filing of written notice at least fifteen (15) days prior to Closing with the District Director, FDA Seattle District Office, in satisfaction of Paragraph 17 of the Company and the Escrow Agent shall have executed and delivered the Escrow AgreementConsent Decree;
(f) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation time period for exercising appraisal rights shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102expired, and the consideration otherwise payable hereunder with respect to such Dissenting Shares (assuming such shares were not Dissenting Shares) shall have been fully released and discharged from any and all obligations pursuant to not represent more than three percent (i3%) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and of the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;Estimated Merger Consideration; and
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h).
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer;
(j) if Company shall have delivered, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
(k) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party Separation shall have been terminated with respect to the Company and its Subsidiaries prior to the Closing Date;
(l) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated this Agreement on or before the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and
(r) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyerconsummated.
Appears in 1 contract
Samples: Merger Agreement (Stryker Corp)
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations obligation of Buyer and Merger Sub to consummate close the transactions contemplated by this Agreement are hereby is subject to the satisfaction fulfillment of all of the following conditions immediately prior to as of the Effective Time (any or all of which may be waived by Buyer to the extent permitted by applicable Legal Requirements):Closing:
(a) the The representations and warranties set forth of the Company in Sections 5 Section 3.1 (other than under clauses (i) and 6 (gg) of this Agreement Section 3.1) (as modified by the Company Disclosure Schedule) and any certificate or other writing delivered by the Company pursuant hereto (i) that are qualified by materiality or Material Adverse Effect shall have been be true and correct as of the date of this Agreement at and as of the Closing Date as if made at and as of such time (except for other than such representations and warranties that speak are made as of another specific a specified date, which only need representations and warranties shall be true and correct as of such date) except for: (i) such inaccuracies (without regard to qualifications regarding material adversity or Material Adverse Effect) as, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; and (ii) changes contemplated that are not qualified by this Agreement materiality or resulting from any action or inaction expressly consented to Material Adverse Effect shall be true and correct in writing all material respects at and as of the Closing as if made at and as of such time (other than such representations and warranties that are made as of a specified date, which representations and warranties shall be true and correct in all material respects as of such date), (ii) the representations and warranties set forth in clauses (i) and (gg) of Section 3.1 (as modified by Buyer;the Company Disclosure Schedule) shall be true and correct in all respects at and as of the Closing, as if made at and as of such time (other than such representations and warranties that are made as of a specified date, which representations and warranties shall be true and correct as of such date).
(b) All obligations of the Company to be performed hereunder through, and including as part of, the Closing shall have been performed and complied with in all material respects all of the covenants and agreements required to be performed by it under this Agreement prior to the Closing;respects.
(c) The Company shall have obtained all of the consents, authorizations, approvals, waivers and exemptions contemplated under Section 3.1(b), and no changesuch consent, authorization, approval, waiver or exemption shall have been revoked. Buyer shall have obtained all of the consents, authorizations, approvals, waivers and exemptions contemplated under Section 3.2(b), and no such consent, authorization, approval, waiver or exemption shall have been revoked
(d) There shall not have occurred and be continuing as of, or otherwise arisen before, the Closing any event, occurrence, effect, development, condition, circumstance, matter revelation or development of a state of circumstances or facts shall have occurred, between the date of this Agreement and the Closing Date, thatwhich, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect;.
(de) the Company shall have delivered to Buyer each The holders of the following:
no greater than five percent (i) a certificate of the Company, dated as of the Closing Date, stating that the conditions specified in Sections 10.1(a) and 10.1(b), have been satisfied; and
(ii) a certificate of the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents5%) of the outstanding shares of Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate;
(iii) payoff letters, in form and substance reasonably satisfactory to Buyer, from all holders of Closing Indebtedness (and the Company Stock shall have made arrangements reasonably satisfactory perfected appraisal, dissenters’ or similar rights under applicable Law with respect to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as of the Closing, including without limitation, in respect of any Encumbrances listed on Schedules 5.5(c) or 6.3);
(iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained or made for the consummation of the transactions contemplated hereby, including without limitation the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv);
(v) such Consents as are required to be obtained or made for the consummation of the transactions contemplated hereby pursuant to any Material Contracts, if listed on Schedule 10.1(d)(v);
(vi) an affidavit, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7;
(e) the Representative, the Company and the Escrow Agent shall have executed and delivered the Escrow by this Agreement;.
(f) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation The Key Employee shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h).
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer;
(j) if Company shall have delivered, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
(k) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall have been terminated with respect to the Company and its Subsidiaries prior to the Closing Date;
(l) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated this Agreement on or before the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and
(r) all actions to be taken by the Company and the Shareholders Key Employment Agreements shall have been executed and shall be in connection with consummation full force and effect.
(g) At least 90% of the transactions contemplated hereby Retained Employees shall have accepted offers of employment from Buyer, and such acceptances shall be in full force and effect.
(h) The Buyer shall have received all certificates, opinions, instruments and other documents required Closing deliverables of the Company pursuant to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to BuyerArticle 6.
Appears in 1 contract
Samples: Merger Agreement (SMART Modular Technologies (WWH), Inc.)
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement Transactions, including the Merger, are subject to the satisfaction (or waiver in writing by Buyer) of each of the following conditions immediately prior to at the Effective Time (any or all of which may be waived by Buyer to the extent permitted by applicable Legal Requirements):Closing:
(a) (i) the representations and warranties set forth in Sections 5 ARTICLE III (other than the Fundamental Representations and 6 the representation and warranty set forth in clause (ii) of this Agreement the first sentence of Section 3.07) shall have been be true and correct as of the date Closing Date (disregarding all qualifications or limitations as to “materiality,” “in all material respects” or “Material Adverse Effect” and words of this Agreement similar import set forth therein) as though such representations and warranties had been made on and as of the Closing Date (except for that representations and warranties that speak are made as of another specific which only a specified date need be true and correct only as of such date) ), except for: in each case under this clause (i) such inaccuracies (without regard ), as has not had, and would not reasonably be expected to qualifications regarding material adversity or Material Adverse Effect) ashave, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; and a Material Adverse Effect, (ii) changes contemplated by this Agreement or resulting from any action or inaction expressly consented to the Fundamental Representations set forth in writing by BuyerARTICLE III shall be true and correct in all respects (other than de minimis exceptions) as of the Closing Date as though such representations and warranties had been made on and as of the Closing Date and (iii) the representation and warranty set forth in clause (ii) of the first sentence of Section 3.07 shall be true and correct in all respects as of the Closing Date as though such representations and warranties had been made on and as of the Closing Date;
(b) the Company shall have performed in all material respects all of the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts Material Adverse Effect shall have occurred, between occurred after the date of this Agreement and the Closing Date, that, individually or in the aggregate, has had a Material Adverse Effectshall be continuing;
(d) the Company shall have has delivered to Buyer each of the following:
(i) and Merger Sub a certificate of the Company, in the form of Exhibit F and dated as of the Closing Date, stating that the conditions specified set forth in Sections 10.1(aSection 7.02(a), Section 7.02(b) and 10.1(b), Section 7.02(c) have been satisfied; and
(ii) a certificate of the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate;
(iii) payoff letters, in form and substance reasonably satisfactory to Buyer, from all holders of Closing Indebtedness (and the Company shall have made arrangements reasonably satisfactory to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as of the Closing, including without limitation, in respect of any Encumbrances listed on Schedules 5.5(c) or 6.3);
(iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained or made for the consummation of the transactions contemplated hereby, including without limitation the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv);
(v) such Consents as are required to be obtained or made for the consummation of the transactions contemplated hereby pursuant to any Material Contracts, if listed on Schedule 10.1(d)(v);
(vi) an affidavit, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7;
(e) The Dissenting Shares arising under the Representative, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(f) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h).
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer;
(j) if Company shall have delivered, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
(k) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall have been terminated with respect to the Company and its Subsidiaries prior to the Closing Date;
(l) DGCL represent no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the outstanding capital stock of the Company Common Stock outstanding immediately prior entitled to the Effective Timevote thereon;
(nf) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, The Voting and the information provided to Buyer therefrom Support Agreement shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer effective and Merger Sub shall not have terminated this Agreement on been revoked, rescinded, waived or before amended without the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to written consent of Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and
(rg) all actions The Company is in a position to deliver each of the items required to be taken delivered by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required it pursuant to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to BuyerSection 2.02.
Appears in 1 contract
Samples: Merger Agreement (PTC Inc.)
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations obligation of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are Merger is subject to the satisfaction satisfaction, or waiver by Buyer, of each of the following additional conditions as of immediately prior to the Effective Time (any or all of which may be waived by Buyer to the extent permitted by applicable Legal Requirements):Time:
(ai) Each of the representations and warranties set forth of the Company contained in Sections 5 and 6 Article 7 of this Agreement (a) that are qualified as to Company Material Adverse Effect shall have been be true and correct as of the date of this Agreement and Closing Date as if made anew as of the Closing Date such date (except for to the extent such representations and warranties that speak expressly relate to an earlier date (in which case as of another specific which only need such earlier date)), and (b) that are not so qualified shall be true and correct as of the Closing Date as if made anew as of such date (except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such earlier date)), except for failures of the representations and warranties referred to in this clause (b) except for: (i) such inaccuracies (without regard to qualifications regarding material adversity or Material Adverse Effect) as, individually or in the aggregate, have be true and correct as do not had or and would not reasonably be expected to adversely affect the Company or the Business in any material respect; and (ii) changes contemplated by this Agreement or resulting from any action or inaction expressly consented to in writing by Buyer;
(b) the Company shall have performed in all material respects all of the covenants and agreements required to be performed by it under this Agreement prior to the Closing;
(c) no changehave, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred, between the date of this Agreement and the Closing Date, that, individually or in the aggregate, has had a Company Material Adverse Effect;
(dii) Each of the covenants and agreements of the Company to be performed as of or prior to the Closing shall have been performed in all material respects;
(iii) The Company shall have delivered to Buyer each and Merger Sub a certificate in the form of Exhibit D attached hereto dated the Closing Date and signed by a senior executive officer of the following:Company on behalf of the Company confirming the foregoing matters in Section 5B(i) and 5B(ii);
(iiv) a certificate The Company shall have delivered to Buyer and Merger Sub certified copies of the resolutions or consents of the Company’s board of directors and stockholders approving the Merger;
(v) On or prior to the second business day after the date hereof, the Company Representative shall have delivered to Buyer an executed counterpart of the Voting Agreement;
(vi) Buyer shall have received a written opinion, dated as of the Closing Date, stating from Sidley Austin LLP or other counsel reasonably satisfactory to the Buyer to the effect that the conditions specified in Sections 10.1(a) Merger and 10.1(b), have been satisfied; and
(ii) a certificate the Post-Closing Mergers will be treated for federal income tax purposes as “reorganizations” within the meaning of Section 368 of the CompanyCode (or, dated as in the case of the Closing DateGLDD Merger, certifying the opinion may be to the effect that the GLDD Merger will instead be treated as to (i) a liquidation of GLDD within the full force and effect meaning of Section 332 of the articles Code) and, with respect to the Merger, Buyer and the Company will each be a party to a reorganization within the meaning of incorporation Section 368 of the Code and, with respect to the Post-Closing Mergers, Buyer, Holdco and bylaws GLDD will each be a party to a reorganization within the meaning of Section 368 of the Code (unless the opinion states that the GLDD Merger is treated as a liquidation of GLDD within the meaning of Section 332 of the Code, in which case only the Buyer will be a party to a reorganization within the meaning of Section 368 of the Code). In rendering such opinion, Sidley Austin LLP or equivalent governing documents) such other counsel may rely upon representations contained herein and customary representation letters of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate;Buyer.
(iiivii) payoff letters, in form and substance reasonably satisfactory to Buyer, from all holders of Closing Indebtedness (and the The Company shall have made arrangements reasonably satisfactory to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as of the Closing, including without limitation, in respect of any Encumbrances listed on Schedules 5.5(c) or 6.3);
(iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained or made for the consummation of the transactions contemplated hereby, including without limitation the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv);
(v) such Consents as are required to be obtained or made for the consummation of the transactions contemplated hereby pursuant to any Material Contracts, if listed on Schedule 10.1(d)(v);
(vi) an affidavit, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7;
(e) the Representative, the Company Representative and the Escrow Agent shall have executed and delivered to the Buyer Representative the Adjustment Escrow Agreement;
(fviii) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation The Company Representative shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory executed counterpart to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership investor rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, agreement substantially in the form of Exhibit 10.1(h).
F attached hereto (ithe “Investor Rights Agreement”) to Buyer, Holdco, and each of the 31 employees of Aldabra Shareholders (as defined in the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to BuyerInvestor Rights Agreement);
(jix) if Company shall have deliveredSince December 31, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.62005, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
(k) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall have been terminated with respect to the Company and its Subsidiaries prior to the Closing Date;
(l) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent there shall not have been unreasonably withheld;a Company Material Adverse Effect; and
(mx) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if The Buyer and Merger Sub shall not have terminated this Agreement on or before received from the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable Company prior to the Shareholders;
(p) Closing Date hereof a certificate, as described in Treasury Regulation Section 1.1445- 2(c), affirming that the Company is not a U.S. real property holding company, within the meaning of Section 897 of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and
(r) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to BuyerCode.
Appears in 1 contract
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfaction fulfillment of the following conditions immediately prior to as of the Effective Time (any or all of which may be waived by Buyer to the extent permitted by applicable Legal Requirements):Closing:
(a) the The representations and warranties set forth in Sections 5 and 6 of this Agreement ARTICLE V hereof which are not qualified as to materiality shall have been be true and correct in all material respects and the representations and warranties which are qualified as to materiality shall be true and correct in all respects, in each case as of the date of this Agreement hereof and at and as of the Closing Date (except as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties that speak as of another specific which only need be true and correct as of such date) except for: (i) such inaccuracies (without regard to qualifications regarding material adversity or Material Adverse Effect) as, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; and (ii) changes contemplated by this Agreement or resulting from any action or inaction expressly consented to in writing by Buyerwarranties;
(b) the The Company shall have performed and complied in all material respects with all of the covenants and agreements required to be performed by it under this Agreement on or prior to the Closing;
(c) no change, event, occurrence, effect, development, condition, circumstance, matter Those consents by third parties identified on Schedule 3.1(c) that are required for the consummation of the transactions contemplated hereby or state that are required in order to prevent a breach of facts or a default under or a termination or modification of or any right of acceleration of any obligations under any contract or agreement (including the Leased Property) (“Third Party Approvals”) shall have occurredbeen obtained, between in form and substance reasonably satisfactory to Buyer and originals or copies of executed counterparts thereof shall have been made available for inspection by Buyer prior to the Closing;
(d) All governmental filings, authorizations and approvals that are required for the consummation of the transactions contemplated hereby (“Governmental Approvals”) shall have been duly made and obtained, and all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), shall have expired or been terminated;
(e) No suit, action or other proceeding, or injunction or final judgment, order or decree relating thereto, shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator in which it is sought to restrain or prohibit or to obtain damages or other relief (including rescission) in connection with the transactions contemplated hereby, or that has had, or would reasonably be expected to have, a Material Adverse Effect, or that would adversely affect the right of Buyer to own, operate or control the Company; no investigation that would result in any such suit, action or proceeding shall be pending nor threatened and no such judgment, order or decree has been entered and not subsequently dismissed with prejudice;
(f) From the date of this Agreement and the Closing DateAgreement, thatthere shall have been no event, transaction, condition or change, either individually or in the aggregate, which has had or would reasonably be expected to have a Material Adverse Effect;
(dg) The Company shall have delivered to Buyer payoff letters with respect to all Indebtedness covered by clauses (i) and (ii) of the definition of Indebtedness herein which is outstanding as of the Closing, and documentation evidencing the release of any and all Liens securing such Indebtedness shall have been delivered, all on terms reasonably satisfactory to Buyer (the “Payoff Letters”);
(h) The CMU Licenses shall have been terminated and the transactions contemplated by the CMU Technology Purchase Agreement among Buyer, the Company and Carnegie Mellon University shall have been consummated;
(i) Each of the Retention Agreements shall not have been amended, altered or repealed and shall be effective as of the Closing in accordance with the terms of such agreement existing as of the date hereof;
(j) The Representative and the Escrow Agent shall have executed and delivered to Buyer a counterpart of the Escrow Agreement;
(k) The Company shall have delivered to Buyer written evidence, in form and substance reasonably satisfactory to Buyer, that the agreements set forth on Schedule 3.1(k) have been terminated prior to the Closing;
(l) Each of the Non-Compete Agreements shall not have been amended, altered or repealed and shall be effective as of the Closing in accordance with the terms of such agreement existing as of the date hereof;
(m) Each of the Employment Agreement Termination Agreements shall not have been amended, altered or repealed and shall be effective as of the Closing in accordance with the terms of such agreement existing as of the date hereof;
(n) On or prior to the Closing Date, the Company shall have delivered to Buyer each all of the following:
(i) a certificate from a duly authorized officer of the Company, dated as of the Closing Date, stating that the conditions specified in Sections 10.1(a) and 10.1(b), have been satisfied; and
(ii) a certificate of the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate;
(iii) payoff letters, in form and substance reasonably satisfactory to Buyer, from all holders of dated the Closing Indebtedness Date, stating that the preconditions specified in Sections 3.1(a), (b), (e) and (f) have been satisfied (the “Company shall have made arrangements reasonably satisfactory to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as Certificate”);
(ii) copies of the ClosingThird Party Approvals, including without limitation, in respect Governmental Approvals and Payoff Letters;
(iii) evidence of any Encumbrances listed on Schedules 5.5(c) or 6.3)termination of the CMU Licenses;
(iv) such Consents or registrationscertified copies of (A) the articles of incorporation and by-laws of the Company, declarations or filings with any Governmental Body legally required to be obtained or made for (B) the resolutions of the Company's board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby, and the consummation of the all transactions contemplated hereby, including without limitation hereby and thereby and (C) the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv)Stockholder Approval;
(v) such Consents as are required to be obtained or made for the consummation certificates of the transactions contemplated hereby pursuant Secretary of State of the Commonwealth of Pennsylvania and each state where it is qualified to any Material Contracts, if do business (including the states listed on Schedule 10.1(d)(v)5.1) stating that the Company is in good standing, dated not more than ten days prior to Closing;
(vi) an affidavit, under penalties of perjury, stating a certificate in compliance with Treas. Reg. §§1.897-2(h) and 1.1445-2(c)(3) that none of the Company or its Subsidiaries is or has been not a “United States real property holding corporation and that shares corporation” as defined under Section 897 of the Company’s capital stock are not United States real property interests Code;
(as defined in Code section 897(c)vii) dated copies of resignations from each director of the Company effective as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7;
(e) the Representative, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(f) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h).
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer;
(j) if Company shall have delivered, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
(k) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall have been terminated with respect to the Company and its Subsidiaries prior to the Closing Date;
(l) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated this Agreement on or before the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and
(rviii) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and such other documents required or instruments as Buyer may reasonably request to effect the transactions contemplated hereby will hereby. Any condition specified in this Section 3.1 may be reasonably satisfactory waived by Buyer; provided that no such waiver shall be effective unless it is set forth in form and substance to a writing executed by Buyer.
Appears in 1 contract
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement Transactions, including the Merger, are subject to the satisfaction (or waiver in writing by Buyer) of each of the following conditions immediately at or prior to the Effective Time (any or all of which may be waived by Buyer to the extent permitted by applicable Legal Requirements):Closing:
(a) (i) the representations and warranties set forth in Sections 5 and 6 of this Agreement ARTICLE III (other than the Fundamental Representations set forth in ARTICLE III) shall have been be true and correct (disregarding all qualifications or limitations as to "materiality," "in all material respects" or "Material Adverse Effect" and words of similar import set forth therein) as of the date hereof and as of this Agreement the Closing Date, as though such representations and warranties had been made on and as of the Closing Date (except for that representations and warranties that speak are made as of another specific which only a specified date need be true and correct only as of such date) ), except for: in each case under this clause (i) where the failure of such inaccuracies (without regard representations and warranties to qualifications regarding material adversity be true and correct individually or Material Adverse Effect) asin the aggregate has not had, and would not reasonably be expected to have, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; a Material Adverse Effect and (ii) changes contemplated by this Agreement or resulting from any action or inaction expressly consented to the Fundamental Representations set forth in writing by BuyerARTICLE III shall be true and correct in all respects, except for inaccuracies that are de minimis, as of the date hereof and as of the Closing Date, as though such representations and warranties had been made on and as of the Closing Date;
(b) the Company shall have has performed in all material respects all of the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred, between from the date of this Agreement and until the Closing DateClosing, that, individually or in the aggregate, has had there shall not have occurred a Material Adverse Effect;; and
(d) the Company shall have has delivered to Buyer each of the following:
(i) and Merger Sub a certificate of the Company, dated as an authorized officer of the Closing Date, Company stating that the conditions specified in Sections 10.1(a) and 10.1(b), have been satisfied; and
(ii) a certificate of the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate;
(iii) payoff letters, in form and substance reasonably satisfactory to Buyer, from all holders of Closing Indebtedness (and the Company shall have made arrangements reasonably satisfactory to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as of the Closing, including without limitation, in respect of any Encumbrances listed on Schedules 5.5(c) or 6.3);
(iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained or made for the consummation of the transactions contemplated hereby, including without limitation the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv);
(v) such Consents as are required to be obtained or made for the consummation of the transactions contemplated hereby pursuant to any Material Contracts, if listed on Schedule 10.1(d)(v);
(vi) an affidavit, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7;
(e) the Representative, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(f) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h).
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer;
(j) if Company shall have delivered, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.67.02(a), Buyer shall not have given notice to the Company or the Shareholders thatSection 7.02(b) and Section 7.02(c), as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
(k) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall have been terminated with respect they relate to the Company and its Subsidiaries prior to the Closing Date;
(l) no new electionsSubsidiaries, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated this Agreement on or before the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and
(r) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyersatisfied.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Primoris Services Corp)
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfaction fulfillment of the following conditions immediately prior to as of the Effective Time (any or all of which may be waived by Buyer to the extent permitted by applicable Legal Requirements):Closing:
(a) the The representations and warranties set forth in Sections 5 and 6 of this Agreement ARTICLE V hereof which are not qualified as to materiality shall have been be true and correct in all material respects and the representations and warranties which are qualified as to materiality shall be true and correct in all respects, in each case as of the date of this Agreement hereof and at and as of the Closing Date (except as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties that speak as of another specific which only need be true and correct as of such date) except for: (i) such inaccuracies (without regard to qualifications regarding material adversity or Material Adverse Effect) as, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; and (ii) changes contemplated by this Agreement or resulting from any action or inaction expressly consented to in writing by Buyerwarranties;
(b) the The Company shall have performed and complied in all material respects with all of the covenants and agreements required to be performed by it under this Agreement on or prior to the Closing;
(c) no change, event, occurrence, effect, development, condition, circumstance, matter Those consents by third parties identified on Schedule 3.1(c) that are required for the consummation of the transactions contemplated hereby or state that are required in order to prevent a breach of facts or a default under or a termination or modification of or any right of acceleration of any obligations under any contract or agreement (including the Leased Property) (“Third Party Approvals”) shall have occurredbeen obtained, between in form and substance reasonably satisfactory to Buyer and originals or copies of executed counterparts thereof shall have been made available for inspection by Buyer prior to the Closing;
(d) All governmental filings, authorizations and approvals that are required for the consummation of the transactions contemplated hereby (“Governmental Approvals”) shall have been duly made and obtained, and all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), shall have expired or been terminated;
(e) No suit, action or other proceeding, or injunction or final judgment, order or decree relating thereto, shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator in which it is sought to restrain or prohibit or to obtain damages or other relief (including rescission) in connection with the transactions contemplated hereby, or that has had, or would reasonably be expected to have, a Material Adverse Effect, or that would adversely affect the right of Buyer to own, operate or control the Company; no investigation that would result in any such suit, action or proceeding shall be pending nor threatened and no such judgment, order or decree has been entered and not subsequently dismissed with prejudice;
(f) From the date of this Agreement and the Closing DateAgreement, thatthere shall have been no event, transaction, condition or change, either individually or in the aggregate, which has had or would reasonably be expected to have a Material Adverse Effect;
(dg) The Company shall have delivered to Buyer payoff letters with respect to all Indebtedness covered by clauses (i) and (ii) of the definition of Indebtedness herein which is outstanding as of the Closing, and documentation evidencing the release of any and all Liens securing such Indebtedness shall have been delivered, all on terms reasonably satisfactory to Buyer (the “Payoff Letters”);
(h) The CMU Licenses shall have been terminated and the transactions contemplated by the CMU Technology Purchase Agreement among Buyer, the Company and Carnegie Mellon University shall have been consummated;
(i) Each of the Retention Agreements shall not have been amended, altered or repealed and shall be effective as of the Closing in accordance with the terms of such agreement existing as of the date hereof;
(j) The Representative and the Escrow Agent shall have executed and delivered to Buyer a counterpart of the Escrow Agreement;
(k) The Company shall have delivered to Buyer written evidence, in form and substance reasonably satisfactory to Buyer, that the agreements set forth on Schedule 3.1(k) have been terminated prior to the Closing;
(l) Each of the Non-Compete Agreements shall not have been amended, altered or repealed and shall be effective as of the Closing in accordance with the terms of such agreement existing as of the date hereof;
(m) Each of the Employment Agreement Termination Agreements shall not have been amended, altered or repealed and shall be effective as of the Closing in accordance with the terms of such agreement existing as of the date hereof;
(n) On or prior to the Closing Date, the Company shall have delivered to Buyer each all of the following:
(i) a certificate from a duly authorized officer of the Company, dated as of the Closing Date, stating that the conditions specified in Sections 10.1(a) and 10.1(b), have been satisfied; and
(ii) a certificate of the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate;
(iii) payoff letters, in form and substance reasonably satisfactory to Buyer, from all holders of dated the Closing Indebtedness Date, stating that the preconditions specified in Sections 3.1(a), (b), (e) and (f) have been satisfied (the “Company shall have made arrangements reasonably satisfactory to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as Certificate”);
(ii) copies of the ClosingThird Party Approvals, including without limitation, in respect Governmental Approvals and Payoff Letters;
(iii) evidence of any Encumbrances listed on Schedules 5.5(c) or 6.3)termination of the CMU Licenses;
(iv) such Consents or registrationscertified copies of (A) the articles of incorporation and by-laws of the Company, declarations or filings with any Governmental Body legally required to be obtained or made for (B) the resolutions of the Company’s board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby, and the consummation of the all transactions contemplated hereby, including without limitation hereby and thereby and (C) the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv)Stockholder Approval;
(v) such Consents as are required to be obtained or made for the consummation certificates of the transactions contemplated hereby pursuant Secretary of State of the Commonwealth of Pennsylvania and each state where it is qualified to any Material Contracts, if do business (including the states listed on Schedule 10.1(d)(v)5.1) stating that the Company is in good standing, dated not more than ten days prior to Closing;
(vi) an affidavit, under penalties of perjury, stating a certificate in compliance with Treas. Reg. §§1.897-2(h) and 1.1445-2(c)(3) that none of the Company or its Subsidiaries is or has been not a “United States real property holding corporation and that shares corporation” as defined under Section 897 of the Company’s capital stock are not United States real property interests Code;
(as defined in Code section 897(c)vii) dated copies of resignations from each director of the Company effective as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7;
(e) the Representative, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(f) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h).
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer;
(j) if Company shall have delivered, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
(k) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall have been terminated with respect to the Company and its Subsidiaries prior to the Closing Date;
(l) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated this Agreement on or before the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and
(rviii) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and such other documents required or instruments as Buyer may reasonably request to effect the transactions contemplated hereby will hereby. Any condition specified in this Section 3.1 may be reasonably satisfactory waived by Buyer; provided that no such waiver shall be effective unless it is set forth in form and substance to a writing executed by Buyer.
Appears in 1 contract
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the closing of the Merger and other transactions contemplated in this Agreement is subject to the satisfaction or waiver, at or before the Closing, of the following conditions:
(a) not later than 11:59 pm EST on the date hereof (the “Stockholder Approval Delivery Date”), the Company shall obtain and deliver evidence to Buyer that this Agreement shall have been adopted by the requisite consent of at least a majority of the stockholders of the Company in accordance with the FBCA and the Company’s Charter Documents (the “Stockholder Approval”);
(b) no more than 10% of the Shares shall be Dissenting Shares;
(c) all authorizations, consents, Orders or approvals of, or declarations or filings with, or expiration of waiting periods imposed by, any Governmental Authority necessary for the consummation of the transactions contemplated by this Agreement are subject to shall have been obtained or made;
(d) there shall be no temporary restraining order, preliminary or permanent injunction or other Order issued by any Governmental Authority nor other Law or legal restraint or prohibition preventing the satisfaction consummation of the following conditions immediately prior to the Effective Time (any or all of which may transactions contemplated by this Agreement shall be waived by Buyer to the extent permitted by applicable Legal Requirements):in effect;
(ae) (i) (A) the representations and warranties set forth of the Company contained in Sections 5 the Fundamental Representations shall be true and 6 correct (without giving effect to any materiality or Material Adverse Effect qualification or exception contained therein) as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties and (B) the other representations and warranties of the Company in Article 4 shall have been be true and correct as of the date of this Agreement and as of the Closing Date (Date, except for any failure of such representations and warranties that speak as of another specific which only need referenced in the immediately preceding clause (B) to be so true and correct as of such date) except for: (i) such inaccuracies (without regard which has not had and would not be reasonably likely to qualifications regarding material adversity or have a Material Adverse Effect) as, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; and (ii) changes contemplated by this Agreement or resulting from any action or inaction expressly consented to in writing by Buyer;
(b) the Company shall have performed or caused to have been performed in all material respects all of the covenants and agreements required by this Agreement to be performed by it under this Agreement the Company prior to the Closing; and (iii) Buyer shall have received a certificate from the Company stating that each of the conditions specified above in clauses (i) and (ii) is satisfied;
(cf) no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred, between since the date of this Agreement and the Closing DateAgreement, that, individually or in the aggregate, has had a Material Adverse Effect;
(d) the Company Effect shall not have delivered to Buyer each of the following:
(i) a certificate of the Company, dated as of the Closing Date, stating that the conditions specified in Sections 10.1(a) and 10.1(b), have been satisfiedoccurred; and
(iig) a certificate of the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of Buyer shall have received from the Company the certificate described in Section 6.1(e)(iii). Any agreement or document to be delivered to Buyer pursuant to this Section 6.1, the form of which is not attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate;
(iii) payoff lettersan exhibit, shall be in form and substance reasonably satisfactory to Buyer, from all holders of Closing Indebtedness (and the Company shall have made arrangements reasonably satisfactory to . Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as of the Closing, including without limitation, may waive any condition specified in respect of any Encumbrances listed on Schedules 5.5(c) this Section 6.1 if it executes a writing so stating at or 6.3);
(iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained or made for the consummation of the transactions contemplated hereby, including without limitation the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv);
(v) such Consents as are required to be obtained or made for the consummation of the transactions contemplated hereby pursuant to any Material Contracts, if listed on Schedule 10.1(d)(v);
(vi) an affidavit, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7;
(e) the Representative, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(f) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h).
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation ; provided that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer;
(j) if Company shall have deliveredClosing is consummated, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
(k) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall have been terminated with respect to the Company and its Subsidiaries prior to the Closing Date;
(l) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) conditions shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated for purposes of this Agreement on or before the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and
(r) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to BuyerSection 6.1.
Appears in 1 contract
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are is subject to the satisfaction 19 fulfillment of the following conditions immediately prior to as of the Effective Time Closing: (any or all of which may be waived by Buyer to the extent permitted by applicable Legal Requirements):
(a) the a)The representations and warranties set forth in Sections 5 and 6 of this Agreement ARTICLE V hereof which are not qualified as to materiality shall have been be true and correct in all material respects and the representations and warranties which are qualified as to materiality shall be true and correct in all respects, in each case as of the date of this Agreement hereof and at and as of the Closing Date (except as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties that speak as of another specific which only need be true and correct as of such date) except for: warranties; (i) such inaccuracies (without regard to qualifications regarding material adversity or Material Adverse Effect) as, individually or in the aggregate, have not had or would not reasonably be expected to adversely affect the Company or the Business in any material respect; and (ii) changes contemplated by this Agreement or resulting from any action or inaction expressly consented to in writing by Buyer;
(b) the b)The Company shall have performed and complied in all material respects with all of the covenants and agreements required to be performed by it under this Agreement on or prior to the Closing;
; (cc)Those consents by third parties identified on Schedule 3.1(c) no change, event, occurrence, effect, development, condition, circumstance, matter or state that are required for the consummation of facts shall have occurred, between the date of this Agreement and the Closing Date, that, individually or in the aggregate, has had a Material Adverse Effect;
(d) the Company shall have delivered to Buyer each of the following:
(i) a certificate of the Company, dated as of the Closing Date, stating that the conditions specified in Sections 10.1(a) and 10.1(b), have been satisfied; and
(ii) a certificate of the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits that are required in order to such certificate;
prevent a breach of or a default under or a termination or modification of or any right of acceleration of any obligations under any contract or agreement (iiiincluding the Leased Property) payoff letters(“Third Party Approvals”) shall have been obtained, in form and substance reasonably satisfactory to Buyer, from all holders Buyer and originals or copies of Closing Indebtedness (and the Company executed counterparts thereof shall have been made arrangements reasonably satisfactory available for inspection by Buyer prior to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as of the Closing; (d)All governmental filings, including without limitation, in respect of any Encumbrances listed on Schedules 5.5(c) or 6.3);
(iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained or made for the consummation of the transactions contemplated hereby, including without limitation the Consents, registrations, declarations authorizations and filings listed on Schedule 10.1(d)(iv);
(v) such Consents as approvals that are required to be obtained or made for the consummation of the transactions contemplated hereby pursuant to (“Governmental Approvals”) shall have been duly made and obtained, and all applicable waiting periods (and any Material Contractsextensions thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, if listed on Schedule 10.1(d)(v);
as amended (vi) an affidavit, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA CertificateHSR Act”), providedshall have expired or been terminated; (e)No suit, howeveraction or other proceeding, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificateor injunction or final judgment, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding order or decree relating thereto, shall be treated as having been paid pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator in which it is sought to the Shareholders as provided in Section 4.7;
restrain or prohibit or to obtain damages or other relief (eincluding rescission) the Representative, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(f) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h).
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer;
(j) if Company shall have delivered, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
, or that has had, or would reasonably be expected to have, a Material Adverse Effect, or that would adversely affect the right of Buyer to own, operate or control the Company; no investigation that would result in any such suit, action or proceeding shall be pending nor threatened and no such judgment, order or decree has been entered and not subsequently dismissed with prejudice; (k) all Tax sharing agreements or similar arrangements involving f)From the Company or any date of its Subsidiaries or to which the Company or any of its Subsidiaries is a party this Agreement, there shall have been terminated no event, transaction, condition or change, either individually or in the aggregate, which has had or would reasonably be expected to have a Material Adverse Effect; (g)The Company shall have delivered to Buyer payoff letters with respect to the Company all Indebtedness covered by clauses (i) and its Subsidiaries prior to the Closing Date;
(lii) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock definition of Indebtedness herein which is outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated this Agreement on or before the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to and documentation evidencing the consummation release of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer any and all Liens securing such Indebtedness shall have received evidence been delivered, all on terms reasonably satisfactory to Buyer that any and all Encumbrances for (the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released“Payoff Letters”); and
(r) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyer.20
Appears in 1 contract
Samples: Agreement and Plan of Merger
Conditions to Buyer’s and Merger Sub’s Obligations. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement Transactions, including the Merger, are subject to the satisfaction (or waiver in writing by Buyer) of the following conditions immediately prior to at the Effective Time (any or all of which may be waived by Buyer to the extent permitted by applicable Legal Requirements):Closing:
(a) (i) (w) the representations and warranties set forth in Sections 5 ARTICLE III (other than the Fundamental Representations and 6 the representation and warranty set forth in clause (ii) of this Agreement shall have been the first sentence of Section 3.07) are true and correct as of the date Closing Date (disregarding all qualifications or limitations as to “materiality,” “in all material respects” or “Material Adverse Effect” and words of this Agreement similar import set forth therein) as though such representations and warranties had been made on and as of the Closing Date (except for that representations and warranties that speak are made as of another specific which only a specified date need be true and correct only as of such date) ), except for: in each case under this clause (i) such inaccuracies (without regard w), as has not had, and would not reasonably be expected to qualifications regarding material adversity or Material Adverse Effect) ashave, individually or in the aggregate, have not had or would not a Material Adverse Effect, (x) the representations and warranties set forth in the first and last sentences of Section 3.04(a) are true and correct in all respects (other than de minimis errors (defined for purposes of this Agreement as reasonably be expected to adversely affect result in liability of less than $1,200,000 in the Company or aggregate)); provided, that if the Business impact of such failure of the first and last sentences of Section 3.04(a) to be true and correct in any all but de minimis respects is nevertheless reflected in the calculation of Aggregate Fully-Diluted Common Shares and Stock Consideration such that Buyer experiences no additional economic detriment, such inaccuracy shall not be deemed a failure to satisfy the condition set forth in this clause (x), (y) the other Fundamental Representations set forth in ARTICLE III are true and correct in all material respect; respects as of the Closing Date as though such representations and warranties had been made on and as of the Closing Date, and (z) the representation and warranty set forth in clause (ii) changes contemplated by this Agreement or resulting from any action or inaction expressly consented to in writing by Buyerof the first sentence of Section 3.07 is true and correct as of the Closing Date as though such representation and warranty had been made on and as of the Closing Date;
(b) the Company shall have has performed in all material respects all of the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;; and
(c) no change, event, occurrence, effect, development, condition, circumstance, matter or state of facts shall have occurred, between the date of this Agreement and the Closing Date, that, individually or in the aggregate, has had a Material Adverse Effect;
(d) the Company shall have has delivered to Buyer each of the following:
(i) and Merger Sub a certificate of the Company, in the form of Exhibit F and dated as of the Closing Date, stating that the conditions specified in Sections 10.1(a) and 10.1(b), have been satisfied; and
(ii) a certificate of the Company, dated as of the Closing Date, certifying as to (i) the full force and effect of the articles of incorporation and bylaws (or equivalent governing documents) of the Company attached to such certificates as exhibits, and (ii) the accuracy and full force and effect of the resolutions adopted by the sole director and a majority of the shareholders of the Company regarding this Agreement and the transactions contemplated hereby and attached as one or more exhibits to such certificate;
(iii) payoff letters, in form and substance reasonably satisfactory to Buyer, from all holders of Closing Indebtedness (and the Company shall have made arrangements reasonably satisfactory to Buyer for such holders of Closing Indebtedness to deliver all related Encumbrance releases to Buyer effective as of the Closing, including without limitation, in respect of any Encumbrances listed on Schedules 5.5(c) or 6.3);
(iv) such Consents or registrations, declarations or filings with any Governmental Body legally required to be obtained or made for the consummation of the transactions contemplated hereby, including without limitation the Consents, registrations, declarations and filings listed on Schedule 10.1(d)(iv);
(v) such Consents as are required to be obtained or made for the consummation of the transactions contemplated hereby pursuant to any Material Contracts, if listed on Schedule 10.1(d)(v);
(vi) an affidavit, under penalties of perjury, stating that none of the Company or its Subsidiaries is or has been a United States real property holding corporation and that shares of the Company’s capital stock are not United States real property interests (as defined in Code section 897(c)) dated as of the Closing Date and in form and substance required under Treasury Regulation §1.897-2(h) so that Buyer will be exempt from withholding any portion of the Final Merger Consideration thereunder (a “FIRPTA Certificate”), provided, however, that if the Company fails to deliver a properly prepared and executed FIRPTA Certificate, Buyer shall withhold from the Final Merger Consideration all amounts required to be withheld under Code section 1445 and such withholding shall be treated as having been paid to the Shareholders as provided in Section 4.7;
(e) the Representative, the Company and the Escrow Agent shall have executed and delivered the Escrow Agreement;
(f) the Company, Inland American Herndon Worldgate, L.L.C. and Xxxxxx Property Management Corporation shall have executed and delivered an assignment of lease and release, in form and substance reasonably satisfactory to Buyer, pursuant to which the Company shall have assigned to Ntrepid all of its right, title and interest in the leased premises located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and at 0000 Xxxxxx Xxxxxx, Suites 300 and 310, XxXxxx, Virginia 22102, and shall have been fully released and discharged from any and all obligations pursuant to (i) that certain Office Lease Agreement, dated February 18, 2008, by and between Inland American Office Management, LLC, as managing agent for Inland American Herndon Worldgate, L.L.C. and the Company, as amended by the First Amendment, dated Xxxxx 0, 0000, (xx) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated September 6, 2002, as amended by Amendment of Lease Agreement, dated July 3, 2003, Second Amendment of Lease Agreement, dated March 6, 2006, and Third Amendment of Lease Agreement, dated November 25, 2008, and (iii) that certain Agreement of Lease between the Company and Xxxxxx Property Management Corporation, dated July 3, 2003, as amended by Amendment of Lease Agreement, dated March 6, 2006 and Second Amendment of Lease Agreement dated November 25, 2008;
(g) the Company shall have consummated the Spinoff Distribution such that neither the Company nor any of its Subsidiaries shall have any ownership rights in respect of such capital stock or any other equity interest in Anonymizer;
(h) the Company and Ntrepid shall have executed and delivered a Transition Services Agreement, dated as of the Closing Date, substantially in the form of Exhibit 10.1(h).
(i) of the 31 employees of the Company and Dauntless listed on Schedule 10.1(i)-1, not less than 25 shall have become Continuing Employees, and of the 282 employees of the Company and Dauntless listed on Schedule 10.1(i)-2, not less than 198 shall have become Continuing Employees; provided that such employees shall continue to be employed in positions of a similar or superior nature and title to those which such employees occupied immediately prior to the Closing, and with aggregate compensation that is equivalent to or greater than the aggregate compensation which such employees currently receive; and provided, further, that the Company shall be entitled to replace any employee listed on Schedule 10.1(i)-2 with an employee not so listed if the replacement employee has equivalent experience and qualifications to the employee being replaced and the replacement employee’s experience and qualifications are reasonably satisfactory to Buyer;
(j) if Company shall have delivered, supplemented or amended any Schedule pursuant to its obligations set forth in Section 9.6, Buyer shall not have given notice to the Company or the Shareholders that, as a result of information provided to Buyer in connection with any or all of such amendments or supplements, Buyer has determined not to proceed with the consummation of the transactions contemplated hereby;
(k7.02(a) all Tax sharing agreements or similar arrangements involving the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party shall and Section 7.02(b) have been terminated with respect to the Company and its Subsidiaries prior to the Closing Date;
(l) no new elections, and no changes in current elections, with respect to Taxes affecting the Company and its Subsidiaries shall have been made after the date hereof without the prior written consent of Buyer, which consent shall not have been unreasonably withheld;
(m) Dissenting Shares, if any, shall represent not more than 10% of the Company Common Stock outstanding immediately prior to the Effective Time;
(n) Buyer shall have conducted due diligence conference calls or meetings with an aggregate of 10 customers of the Business, representing the 10 largest currently open contracts or subcontracts of the Business, and the information provided to Buyer therefrom shall be satisfactory to Buyer in its sole discretion; provided, however, that the condition set forth in this Section 10.1(n) shall be deemed to have been satisfied if Buyer and Merger Sub shall not have terminated this Agreement on or before the date that is 10 Business Days after the date hereof;
(o) Ntrepid and Anonymizer shall have executed and delivered an agreement reasonably satisfactory to Buyer, pursuant to which Ntrepid and Anonymizer agree to be bound by the terms and conditions of Sections 8.6 and 9.5 applicable to the Shareholders;
(p) as of the Closing, after giving effect to the consummation of the Related Transactions, the Company shall own the personal property listed on Schedule 10.1(p);
(q) Buyer shall have received evidence reasonably satisfactory to Buyer that any and all Encumbrances for the benefit of Allied Capital on the properties and assets of the Company and Dauntless shall have been released; and
(r) all actions to be taken by the Company and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyersatisfied.
Appears in 1 contract
Samples: Merger Agreement (Trimble Inc.)
