CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) the Company shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approval; (b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins or restricts the consummation of the Merger; (c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired; (d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent; (e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order; (f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred; (g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and (h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurred.
Appears in 2 contracts
Samples: Merger Agreement (Kforce Inc), Merger Agreement (Hall Kinion & Associates Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 8.1 Conditions to Each Party's Obligations the Companies' Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto all Companies to effect the Merger are ------ transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by a writing signed by DSSC and ICEWEB:
(a) This Agreement and the Company transactions contemplated hereby shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote and/or consent of the Parent Shareholder Approval;shareholders of ICEWEB in accordance with applicable law.
(b) no No preliminary or permanent injunction or other order by any federal, state, or foreign court of competent jurisdiction which prohibits the consummation of any Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, promulgated issued, promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;.
(c) Other than the filing of Articles or Certificate of Merger with the Department of State for the State of Delaware, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any waiting period applicable to governmental entity (all of the Merger under foregoing, "Consents") which are reasonably necessary for the HSR Act or any other material foreignconsummation of the Merger, federal or state antitrust, competition or fair trade law shall have terminated been filed, occurred, or expired;been obtained (all such permits, approvals, filings, and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect.
(d) any governmental All state securities or regulatory notices, approvals or blue sky permits and other requirements authorizations necessary to issue the DSSC Shares (including satisfactory evidence of the nature of the ICEWEB Shareholders) in exchange for the Shares of ICEWEB and to consummate the Merger shall have been received.
(e) There shall not be any action taken, or any statute, rule, regulation, or order enacted, entered, enforced, or deemed applicable to any Merger, by any federal or state governmental entity which, in connection with the grant of a Requisite Regulatory Approval, imposes any condition or restriction upon DSSC or its subsidiaries (or, in the case of any disposition of assets required in connection with such Requisite Regulatory Approval, upon any Company or its subsidiaries), including, without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or business benefits of the transactions contemplated hereby and by this Agreement as to operate render inadvisable the Surviving Corporation after consummation of the Effective Time Merger.
(f) The other Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of the other Company contained in this Agreement shall be true at and as it was operated prior thereto (other than under of the HSR Act or any other material foreignEffective Time as if made at and as of such time, federal or state antitrustexcept as contemplated by this Agreement, competition or fair trade law) and each Company shall have been givenreceived a certificate of the Chairman of the Board, obtained the President, or complied with, an Executive Vice President of the other Company as applicable except where to the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject satisfaction of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;this condition.
(g) no general moratorium on commercial banking activities by either federal or state authorities All representations and warranties of ICEWEB contained in Article IV and all representations and warranties of DSSC contained in Article V shall have been declared; and
(h) no material outbreak or escalation be true as of hostilitiesthe date of execution of this Agreement, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in through and including the United States shall have occurredEffective Time.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.17.1. Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or waiver, where permissible, prior to the Effective Time Time, of the following conditions:
(a) if required by the PBCL, this Agreement shall have been approved by the requisite affirmative vote of the shareholders of the Company shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approvalin accordance with applicable law;
(b) no statute, rule, regulation, executive order, decree, ruling decree or injunction shall have been enacted, entered, promulgated promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins or restricts which is in effect and has the effect of prohibiting the consummation of the Merger;; and
(c) any waiting period applicable to (x) in the case of the Company's obligations, all governmental consents, orders and approvals legally required for the consummation of the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate and the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been givenobtained and be in effect at the Effective Time, obtained or complied with, as applicable except where the failure to obtain any such consent would not reasonably be givenexpected to subject any officer, director, employee or shareholder of the Company to civil or criminal liability in respect of the failure to obtain such consent, and (y) in the case of Parent's and Purchaser's obligations, (A) all governmental consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby shall have been obtained or complied with and be in effect at the Effective Time, and (B) there shall not be threatened or pending any suit, action, or proceeding by any Governmental Entity, or by any other person which has a reasonable possibility of success, with respect to this Agreement or the Transactions, except where the failure to obtain any such consent or the existence of any such suit, action or proceeding would not reasonably be expected to (i) have a Material Adverse Effect on the Company or Parent, (ii) materially impede or limit the ownership, operation or use of any of the Company's or any of its subsidiaries' assets or business after the Closing, or to compel the Company or Parent or any of their respective subsidiaries or affiliates to dispose of or hold separate any of their businesses or assets as a Material Adverse Effect result of the Offer, the Merger or any of the Transactions, (iii) impose material limitations on the Parent;ability of Parent or Purchaser to acquire or hold, or exercise full rights of ownership of, any shares of Company Common Stock accepted for payment pursuant to the Offer including, without limitation, the right to vote the shares of Company Common Stock accepted for payment by it on all matters properly presented to the shareholders of the Company, (iv) prohibit Parent or any of its subsidiaries or affiliates from effectively controlling the businesses of the Company and its subsidiaries in any material respect, or (v) require divestiture by Purchaser or any of its affiliates of any shares of Company Common Stock; provided, however, that Parent shall be deemed to have waived this condition with respect to any failure to obtain or be in effect any such consent, order or approval or the existence of any such suit, action or proceeding, which failure or existence existed prior to the acceptance for payment by Purchaser of shares of Company Common Stock pursuant to the Offer.
(e) Section 7.2. Conditions to Obligations of Parent and Purchaser to Effect the S-4 Merger. The obligations of Parent and Purchaser to effect the Merger are further subject to the satisfaction or waiver pursuant to Section 1.1, prior to the Effective Time, of the condition that the Purchaser shall have become effective under accepted for payment and paid for shares of Company Common Stock tendered pursuant to the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredOffer.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. SECTION 7.01 Conditions to the Obligations of Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto the Company, Parent and Merger Sub to effect consummate the Merger are ------ subject to the satisfaction at (or prior to waiver by Parent and the Effective Time Company) of the following conditions:
(a) this Agreement and the transactions contemplated hereby shall have been approved and adopted by the requi- site vote of the holders of the outstanding Common Shares of the Company shall have obtained in accordance with the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder ApprovalDGCL;
(b) no statuteany (ii) waiting period under (x) the HSR Act relating to the Merger and (y) Sections 4, rule, regulation, executive order, decree, ruling 5 and 6 of the Shipping Act relating to the Charter Transactions or injunction to any Additional Shipping Act Agreements shall have been enactedexpired and (ii) waiting periods or, enteredif applicable, promulgated review periods of Governmental Authorities, under the Exon Xxxxxx Amend- ment and any foreign or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins or restricts the consummation of the Mergersupranational Antitrust Laws shall have expired;
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law Maritime Approvals shall have terminated or expired;been obtained; and
(d) the consummation of the Merger shall not be re- strained, enjoined or prohibited by any governmental order, judgment, decree, injunction or regulatory noticesruling of a court of competent ju- risdiction, approvals provided, however, that the parties shall com- ply with Sections 6.04 and 6.05 and shall further use their reasonable best efforts to cause any such order, judgment, decree, injunction or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure ruling to be givenvacated or lifted, obtained or complied with shall not unless such action would have a Material Adverse Effect on the Company or a Material Adverse Effect on Par- ent and the Company, taken as a whole.
SECTION 7.02 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger are further subject to the satisfaction (or waiver by Parent;) of the following conditions:
(ea) the S-4 representations and warranties of the Com- pany set forth in this Agreement shall have become effective under be true when made and (except for representations and warranties made as of a specific date, which need only be true as of such date) at and as of the Securities Act Effective Time as if made at and shall not as of such time, except for any failures to be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension true that, in the trading of securities generally aggregate, do not have a Material Adverse Effect on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurred.the
Appears in 1 contract
Samples: Merger Agreement (Apl LTD)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 8.1 Conditions to Each Party's Obligations the Companies' Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto all Companies to effect the Merger are ------ transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by a writing signed by AUG, Acquisition Sub, and STI:
(a) This Agreement and the Company transactions contemplated hereby shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approval;shareholders of STI in accordance with applicable law. [See prior question]
(b) no No preliminary or permanent injunction or other order by any federal, state, or foreign court of competent jurisdiction which prohibits the consummation of any Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, promulgated issued, promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;.
(c) Other than the filing of Articles of Merger with the Secretary of State for the State of Florida. All authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any waiting period applicable to governmental entity (all of the Merger under foregoing, "Consents") which are necessary for the HSR Act or any other material foreignconsummation of the Merger, federal or state antitrust, competition or fair trade law shall have terminated been filed, occurred, or expired;been obtained (all such permits, approvals, filings, and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect.
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate All the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time third party consents set forth in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) Section 4.8 shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;obtained.
(e) AUG shall at Closing have invested $600,000 into the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;Surviving Corporation.
(f) no suspension AUG shall have issued 5,000,000 warrants to management of STI in the trading form of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;Exhibit 8.1(f).
(g) no general moratorium on commercial banking activities by either federal or state authorities One designee of STI shall have been declared; and
(h) no material outbreak or escalation appointed to the Board of hostilities, acts Directors of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredAUG.
Appears in 1 contract
Samples: Merger Agreement (Aug Corp)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 7.1 Conditions to the Obligations of Each Party's Obligations Party to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto Norwest, Newco and Victoria to effect the Merger are ------ subject to the satisfaction of the following conditions at or prior to the Effective Time of the following conditionsClosing Date:
(a) This Agreement and the Company Merger shall have obtained been approved and adopted by the Company Stockholder Approvalrequisite vote of the shareholders of Victoria as may be required by law, by the rules of the Nasdaq National Market, and Parent shall have obtained the Parent Shareholder Approvalby any applicable provisions of its Articles of Incorporation or Bylaws;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction There shall have been enactedobtained any and all approvals of the Banking Regulators, enteredand any applicable waiting period with respect thereto shall have expired;
(c) No order shall have been entered and remain in effect in any action or proceeding before any foreign, promulgated or enforced by any United States federal or state court or United States governmental agency or other foreign, federal or state Governmental Entity regulatory or administrative agency or commission that prohibits, restrains, enjoins would prevent or restricts make illegal the consummation of the Merger;
(cd) The Registration Statement shall be effective on the Closing Date, and all post-effective amendments filed shall have been declared effective or shall have been withdrawn; and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the knowledge of the parties, threatened by the SEC;
(e) There shall have been obtained any and all material permits, approvals and consents of securities or blue sky commissions of any jurisdiction and of any other governmental body or agency that reasonably may be deemed necessary so that the consummation of the Merger and the transactions contemplated thereby will be in compliance with applicable laws, the failure to comply with which would have a material adverse effect on the business, financial condition or results of operations of Norwest, the Surviving Corporation and their subsidiaries, taken as a whole after consummation of the Merger and any applicable waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law with respect thereto shall have terminated or expired;
(df) any governmental All approvals of private persons or regulatory noticescorporations, approvals (i) the granting of which is necessary for the consummation of the Merger or other requirements necessary to consummate the transactions contemplated hereby in connection therewith and to operate (ii) the nonreceipt of which would have a material adverse effect on the business, financial condition or results of operations of Norwest, the Surviving Corporation and their subsidiaries, taken as a whole after the Effective Time consummation of the Merger, shall have been obtained; and
(g) Norwest and Victoria shall have received from Liddell, Sapp, Zivley, Hill & LaBoxx, X.L.P., a written opinion dated as of the date that the Proxy Statement is first mailed to the shareholders of Norwest and Victoria to the effect that (i) the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, (ii) Norwest and Victoria will each be a party to that reorganization within the meaning of Section 368(b) of the Code, (iii) Norwest or Victoria shall not recognize any gain or loss as a result of the Merger, and (iv) the shareholders of Victoria shall not recognize any gain or loss as a result of the Merger, other than to the extent such shareholders receive cash in lieu of fractional shares, and such opinion shall not have been withdrawn or modified in any material respect.
7.2 Conditions to the Obligations of Norwest and Newco to Effect the Merger. The obligations of Norwest to effect the Merger are subject to the satisfaction of the following conditions at or prior to the Closing Date:
(a) The representations and warranties of Victoria contained in Article II shall be accurate in all material respects as it was operated prior thereto (other than under of the HSR Act Closing Date as though such representations and warranties had been made at and as of that time; all of the terms, covenants and conditions of this Agreement to be complied with and performed by Victoria on or any other material foreign, federal or state antitrust, competition or fair trade law) before the Closing Date shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or duly complied with and performed in all material respects, and a certificate to the foregoing effect dated the Closing Date and signed by the chief executive officer of Victoria shall have been delivered to Norwest;
(b) Since the date of this Agreement, no material adverse change in the financial condition, results of operations, business or prospects of Victoria and the Victoria Subsidiaries, taken as a whole, shall have occurred, and Victoria and the Victoria Subsidiaries shall not have suffered any damage, destruction or loss (whether or not covered by insurance) materially adversely affecting the properties or business of Victoria and the Victoria Subsidiaries, taken as a Material Adverse Effect on whole, and a certificate to the Company foregoing effect dated the Closing Date and signed by the chief executive officer of Victoria shall have been delivered to Norwest; and
(c) Victoria shall have furnished to Norwest letters of resignation from those current officers and directors of Victoria who are not, as of the Effective Time, directors or a Material Adverse Effect on officers of Newco.
(d) No approvals, licenses or consents granted by any Banking Regulators or other governmental or regulatory authority in connection with the Parent;transactions contemplated by this Agreement shall contain any condition or requirement relating to Victoria or any Victoria Subsidiary that, in the reasonable judgment of Norwest, is unreasonably burdensome to Norwest.
(e) the S-4 Victoria shall qualify to engage in a "pooling of interests" transaction for accounting purposes and Norwest shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;received from Arthxx Xxxexxxx XXX an opinion to that effect.
(f) At any time since the date hereof the total number of shares of Victoria Common Stock outstanding and subject to issuance upon exercise(assuming for this purpose that phantom shares and other share-equivalents constitute Victoria Common Stock) of all warrants, options, conversion rights, phantom shares or other share-equivalents shall not have exceeded 8,516,843.
7.3 Conditions to the Obligations of Victoria to Effect the Merger. The obligations of Victoria to effect the Merger are subject to the satisfaction of the following conditions at or prior to the Closing Date:
(a) The representations and warranties of Norwest and Newco contained in Article III shall be accurate in all material respects as of the Closing Date as though such representations and warranties had been made at and as of that time; all the terms, covenants and conditions of this Agreement to be complied with and performed by Norwest on or before the Closing Date shall have been duly complied with and performed in all material respects, and a certificate to the foregoing effect dated the Closing Date and signed by the chief executive officer of Norwest shall have been delivered to Victoria;
(b) Since the date of this Agreement, no suspension material adverse change in the trading financial condition, results of securities generally operations, business or prospects of Norwest and the Norwest Subsidiaries, taken as a whole, shall have occurred, and Norwest and the Norwest Subsidiaries shall not have suffered any damage, destruction or loss (whether or not covered by insurance) materially adversely affecting the properties or business of Norwest and the Norwest Subsidiaries, taken as a whole, and a certificate to the foregoing effect dated the Closing Date and signed by the chief executive officer of Norwest shall have been delivered to Victoria; and
(c) The shares of Norwest Common Stock issuable upon consummation of the Merger shall have been approved for listing on Nasdaq or the New York Stock Exchange and the Chicago Stock Exchange subject to official notice of issuance.
(d) Prior to the mailing of the Proxy Statement, Victoria and the Board of Directors of Victoria shall have occurred;
(g) no general moratorium received an opinion of J. P. Xxxxxx Xxxurities, Inc. addressed to Victoria and the Board of Directors of Victoria, and for their exclusive benefit, for inclusion in said Proxy Statement and dated effective as of the date of mailing of such Proxy Statement, based on commercial banking activities such matters as J. P. Xxxxxx Xxxurities, Inc. deems appropriate or necessary, to the effect that the consideration to be received by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation shareholders of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in Victoria pursuant to the United States shall have occurred.Merger is fair from a
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company shall have obtained the Company Stockholder Approval, Approval and Parent shall have obtained the Parent Shareholder Stockholder Approval;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;; and
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurred.
Appears in 1 contract
Samples: Merger Agreement (Edwards J D & Co)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 6.01 Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or waiver, where permissible, by each party hereto prior to the proposed Effective Time Time, of the following conditions:
(a) the Company Stockholder Approval and the Parent Stockholder Approval shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approvalbeen obtained;
(b) no statute, rule, regulation, executive order, decree, ruling decree or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal governmental authority against the Parent, the Sub or state Governmental Entity the Company and be in effect that prohibits, restrains, enjoins prohibits or restricts the consummation of the MergerMerger or makes such consummation illegal (each party agreeing to use all commercially reasonable efforts to have any such prohibition lifted);
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective, and any required post-effective amendment shall have become effective, under the Securities Act Act, and shall not be the subject of any stop order or proceedings seeking a stop order, and any material "blue sky" and other state securities laws applicable to the registration of the Parent Common Stock shall have been complied with;
(fd) no suspension the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated and all filings required to be made prior to the Effective Time with, and all consents, approvals, authorizations and permits required to be obtained prior to the Effective Time from, any governmental authority in connection with the trading consummation of securities generally the Merger shall have been made or obtained (as the case may be), except where the failure to obtain such consents, approvals, authorizations and permits would not be reasonably likely to result in a Material Adverse Effect on Nasdaq Parent, Sub or the New York Stock Exchange shall have occurredCompany or to materially adversely affect the consummation of the Merger;
(ge) the Company and Parent shall have received an opinion from their respective counsel, reasonably acceptable to the Company and the Parent, to the effect that (i) the Merger will qualify as a tax-free reorganization within the meaning of Section 368(a) of the Code; and (ii) the Company, Parent and Sub will each be a "party to a reorganization" within the meaning of Section 368(b) of the Code with respect to the Merger.
Section 6.02 Additional Conditions to the Company's Obligation to Effect the Merger. The obligations of the Company to effect the Merger shall be subject to the satisfaction, or waiver by the Company, prior to the proposed Effective Time, of the following conditions:
(a) no general moratorium on commercial banking activities by either federal or state authorities action shall have been declaredtaken and be continuing, and no statute, rule, regulation, judgment, administrative interpretation, order or injunction shall have been enacted, promulgated, entered, enforced or deemed applicable to the Merger, which would (i) make illegal or prohibit the consummation of the Merger or (ii) render the Company unable to effect the Merger;
(b) no action or proceeding brought by any governmental, regulatory or administrative agency, authority or commission shall have been instituted and be pending that would be reasonably likely to result in any of the consequences referred to in clauses (i) or (ii) of Section 6.02(a) above; and there shall be no proceeding or other action (including without limitation, relating to health care, regulatory, environmental and pension matters) pending or threatened against the Parent or its Subsidiaries which is reasonably likely to have a Material Adverse Effect;
(c) the representations and warranties of Parent and Sub contained in Article IV hereof (without regard to any materiality exception or provisos therein) shall be true and correct in all material respects on the Closing Date as though such representations and warranties were made at and on such date, except (i) for those untruths or inaccuracies which would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (ii) for changes permitted or contemplated by the Transactions Documents. For purposes of the foregoing, notwithstanding any other provisions of this Agreement to the contrary, the effects arising out of or relating to (i) economic conditions affecting the U.S. economy or the health care industry generally, (ii) the proposal, adoption or implementation after the date hereof of any law, statute, rule or regulation relating to health care, Medicaid or Medicare, including, without limitation, the proposal, adoption or implementation of prospective payment systems and "salary equivalency" rates (including amendments to any salary equivalency rates currently in effect), (iii) the Merger or the announcement thereof, including without limitation, resignations of key employees; (iv) any action or event permitted by Section 5.1(a) hereof; or (v) any matter identified in Section 3.04 of the Company Disclosure Letter shall not constitute a circumstance which will be a basis for asserting the existence or occurrence of a Material Adverse Effect. The existence or occurrence of a Material Adverse Effect notwithstanding the exclusions referred to in the immediately preceding sentence is hereinafter referred to as an "Omnibus Parent Material Adverse Event."
(d) Parent shall have entered into the Definitive Financing Agreements referred to in Section 5.14.
(e) Parent and Sub shall have performed in all material respects all covenants, agreements and obligations required to be performed by them under the Agreement at or prior to the Effective Time.
Section 6.03 Additional Conditions to the Parent's and the Sub's Obligations to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction, or waiver by Parent and Sub, prior to the proposed Effective Time, of the following conditions:
(a) no action shall have been taken and be continuing, and no statute, rule, regulation, judgment, administrative interpretation, order or injunction shall have been enacted, promulgated, entered, enforced or deemed applicable to the Merger, which would (i) make illegal or prohibit the consummation of the Merger or (ii) render Parent or Sub unable to effect the Merger;
(b) no action or proceeding brought by any governmental, regulatory or administrative agency, authority or commission shall have been instituted and be pending that would be reasonably likely to result in any of the consequences referred to in clauses (i) or (ii) of Section 6.03(a) above; and there shall be no proceeding or other action (including, without limitation, relating to health care, regulatory, environmental and pension matters) pending or threatened against the Company or its Subsidiaries which is reasonably likely to have a Material Adverse Effect;
(c) during the 30 day period ending on the Closing Date, there shall not have occurred and be continuing the declaration of any banking moratorium or any suspension of payments in respect of banks or any material limitation (whether or not mandatory) on the extension of credit by lending institutions in the United States; and
(hd) no material outbreak the representations and warranties of the Company contained in Article III hereof (without regard to any materiality exceptions or escalation provisos contained therein) shall be true and correct in all respects on the Closing Date as though such representations and warranties were made at and on such date, except (i) for those untruths or inaccuracies which would not, singly or in the aggregate, reasonably be expected to have Material Adverse Effect and (ii) for changes expressly permitted or contemplated by the Transaction Documents. For purposes of hostilitiesthe foregoing, acts notwithstanding any other provisions of terrorism this Agreement to the contrary, the effects arising out of or other domestic or international calamity, crisis or change in political, financial or relating to (i) economic conditions affecting the U.S. economy or other material the health care industry generally, (ii) the proposal, adoption or implementation after the date hereof of any law, statute, rule or regulation relating to health care, Medicaid or Medicare, including, without limitation, the proposal, adoption or implementation of prospective payment systems and "salary equivalency" rates (including amendments to any salary equivalency rates currently in effect), (iii) the Merger or the announcement thereof, including without limitation, resignations of key employees; (iv) any action or event materially affecting financial markets permitted by Section 5.1(a) hereof; or (v) any matter identified in Section 3.014 of the Parent Disclosure Letter shall not constitute a circumstance which will be a basis for asserting the existence or occurrence of a Material Adverse Effect. The existence or occurrence of a Material Adverse Effect notwithstanding the exclusions referred to in the United States immediately preceding sentence is hereinafter referred to as an "Omnibus Company Material Adverse Event."
(e) The Company shall have occurredperformed in all material respects all covenants, agreements and obligations required to be performed by it under this Agreement at or prior to the Effective Time.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.16.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- MergerCONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT THE MERGER. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company this Agreement shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approvalshareholders of the Company;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that governmental authority and continued in effect which prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired, and any other governmental or regulatory notices or approvals required with respect to the transactions contemplated hereby shall have been either filed or received;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) FCC shall have been givenconsented to the transfer of control of the FCC Licenses, obtained or complied withby means of action by the FCC (including action duly taken by the FCC's staff, as applicable except where the failure pursuant to be givendelegated authority), obtained or complied with which shall not have a Material Adverse Effect on been reversed, stayed, enjoined, set aside, annulled or suspended, with respect to which no timely request for stay, petition for rehearing, appeal or certiorari or SUA SPONTE action of the Company FCC with comparable effect shall be pending and as to which the time for filing any such request, petition, appeal, certiorari or a Material Adverse Effect on for the Parenttaking of any such SUA SPONTE action by the FCC shall have expired;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;order and GM shall have received all state securities laws or "blue sky" permits and authorizations necessary to issue shares of Acquiror Stock in exchange for the Shares in the Merger; and
(f) no suspension the Acquiror Stock issuable in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities Merger shall have been declared; and
(h) no material outbreak or escalation authorized for listing on the NYSE, subject to official notice of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredissuance.
Appears in 1 contract
Samples: Merger Agreement (United States Satellite Broadcasting Co Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 6.1 Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ shall be subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) any waiting period applicable to the Company consummation of the Merger under the HSR Act shall have obtained the Company Stockholder Approvalexpired or been terminated, and Parent no action shall have obtained been instituted by the Parent Shareholder ApprovalDepartment of Justice or Federal Trade Commission challenging or seeking to enjoin the consummation of this transaction, which action shall have not been withdrawn or terminated;
(b) no statute, rule, regulation, executive order, decree, ruling or preliminary or permanent injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that which prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to this Agreement and consummation of the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired;been duly approved and adopted by the holders of outstanding Common Stock by the Requisite Company Vote; and
(d) no court or Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any governmental Law, order, injunction or regulatory noticesdecree (whether temporary, approvals preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the Merger or the other requirements necessary to consummate the transactions contemplated hereby and or that, individually or in the aggregate with all other such Laws, orders, injunctions or decrees, could reasonably be expected to operate the Surviving Corporation after the Effective Time result in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Parent Material Adverse Effect on the Company or a Company Material Adverse Effect on the Parent;
(e) the S-4 Effect, and no Governmental Entity shall have become effective under instituted any proceeding or threatened to institute any proceeding seeking any such Law, order, injunction or decree; provided, however, that the Securities Act and provisions of this Section 6.1(d) shall not be the subject of apply to any stop order party that has directly or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq indirectly solicited or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredencouraged any such Action.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 7.1 Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The ----------------------------------------------------------- respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company There shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approval;
(b) no not be in effect any statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state other order of a court or United States federal governmental or state Governmental Entity regulatory agency of competent jurisdiction directing that prohibitsthe transactions contemplated herein not be consummated; provided, restrainshowever, enjoins that prior to invoking this condition each party shall use all commercially reasonable efforts to have any such decree, ruling, injunction or restricts order vacated.
(b) All governmental consents, orders and approvals legally required for the consummation of the Merger;Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Effective Time, and the waiting periods under the HSR Act shall have expired or been terminated.
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law Company Shareholder Approval shall have terminated or expired;been obtained.
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) Parent Shareholder Approval shall have been givenobtained in accordance with applicable law, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Nasdaq and Parent;'s Articles of Incorporation.
(e) The shares of Parent Common Stock issuable in connection with the S-4 Merger shall have been approved for trading on the Nasdaq, subject to official notice of issuance.
(f) The Registration Statement shall have become effective under the Securities Act Act, and all post-effective amendments shall not be have been declared effective or shall have been withdrawn; and no stop order suspending the subject effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the knowledge of the parties, threatened by the SEC.
(g) There shall have been obtained any and all material permits, approvals and consents of securities or "blue sky" authorities of any stop order jurisdiction that are necessary so that the consummation of the Merger and the transactions contemplated thereby will be in compliance with applicable laws, the failure to comply with which would have a Parent Material Adverse Effect.
(h) In the absence of a Reverse Merger Circumstance, the Company and Parent shall have received the Tax Opinion.
7.2 Conditions to the Company's Obligations to Effect the Merger. The ------------------------------------------------------------ obligations of the Company to effect the Merger are subject to the satisfaction at or proceedings seeking prior to the Effective Time of the following additional conditions:
(a) The representations and warranties of Parent and Newco contained in this Agreement shall be true and correct (in all material respects, in the case of representations and warranties not already qualified as to materiality by their terms) at and as of the Effective Time as though made on and as of such date (except (i) for changes specifically permitted by this Agreement and (ii) that those representations and warranties which address matters only as of a stop order;particular date shall remain true and correct as of such date), and the Company shall have received a certificate of the President or a Vice President of Parent to the foregoing effect.
(b) Parent and Newco shall have performed and complied with in all material respects their obligations under this Agreement to be performed or complied with on or prior to the Effective Time, and the Company shall have received a certificate of the President or a Vice President of Parent to the foregoing effect.
(c) There shall have been no Parent Material Adverse Effect since November 21, 2001.
(d) Parent shall have increased the number of its Board of Directors to include Xxxx X. Xxxxx as a Class A Director. Such person so appointed shall serve until such time as his successor has been duly elected, qualified, or appointed. Parent's Board of Directors shall nominate Xx. Xxxxx for reelection in 2002 as a Class A Director, and support his reelection at Parent's 2002 annual meeting of shareholders.
7.3 Conditions to Parent's and Newco's Obligations to Effect the Merger. ------------------------------------------------------------------- The obligations of Parent and Newco to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following additional conditions:
(a) The representations and warranties of the Company contained in this Agreement shall be true and correct (in all material respects, in the case of representations and warranties not already qualified as to materiality by their terms) at and as of the Effective Time as though made on and as of such date (except (i) for changes specifically permitted by this Agreement and (ii) that those representations and warranties which address matters only as of a particular date shall remain true and correct as of such date), and Parent shall have received a certificate of the President or a Vice President of the Company to the foregoing effect.
(b) The Company shall have performed and complied with in all material respects its obligations under this Agreement to be performed or complied with on or prior to the Effective Time, and Parent shall have received a certificate of the President or a Vice President of the Company to the foregoing effect.
(c) No Distribution Date (as defined in the Company Rights Agreement) shall have occurred.
(d) All of the Company's Preferred Stock shall have been redeemed or converted into shares of the Company's Common Stock in accordance with the provisions of Sections 5, 7 and 11 of such Preferred Stock, and on terms and conditions reasonably satisfactory to Parent.
(e) The Company shall have delivered to Parent agreements in the form of Exhibit D ("Company Affiliate Agreements") executed by each person who could reasonably be deemed to be an "affiliate" of the Company (as that term is used in Rule 145 of the Securities Act).
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities There shall have been declared; and
(h) no material outbreak or escalation of hostilitiesCompany Material Adverse Effect since November 21, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurred2001.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Conestoga Enterprises Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. SECTION 6.01 Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or waiver, where permissible, by each party hereto prior to the proposed Effective Time Time, of the following conditions:
(a) the Company Stockholder Approval and the Parent Stockholder Approval shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approvalbeen obtained;
(b) no statute, rule, regulation, executive order, decree, ruling decree or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal governmental authority against the Parent, the Sub or state Governmental Entity the Company and be in effect that prohibits, restrains, enjoins prohibits or restricts the consummation of the MergerMerger or makes such consummation illegal (each party agreeing to use all commercially reasonable efforts to have any such prohibition lifted);
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective, and any required post-effective amendment shall have become effective, under the Securities Act Act, and shall not be the subject of any stop order or proceedings seeking a stop order, and any material "blue sky" and other state securities laws applicable to the registration of the Parent Common Stock shall have been complied with;
(fd) no suspension the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated and all filings required to be made prior to the Effective Time with, and all consents, approvals, authorizations and permits required to be obtained prior to the Effective Time from, any governmental authority in connection with the trading consummation of securities generally the Merger shall have been made or obtained (as the case may be), except where the failure to obtain such consents, approvals, authorizations and permits would not be reasonably likely to result in a Material Adverse Effect on Nasdaq Parent, Sub or the New York Stock Exchange shall have occurredCompany or to materially adversely affect the consummation of the Merger;
(ge) the Company and Parent shall have received an opinion from their respective counsel, reasonably acceptable to the Company and the Parent, to the effect that (i) the Merger will qualify as a tax-free reorganization within the meaning of Section 368(a) of the Code; and (ii) the Company, Parent and Sub will each be a "party to a reorganization" within the meaning of Section 368(b) of the Code with respect to the Merger.
SECTION 6.02 Additional Conditions to the Company's Obligation to Effect the Merger. The obligations of the Company to effect the Merger shall be subject to the satisfaction, or waiver by the Company, prior to the proposed Effective Time, of the following conditions:
(a) no general moratorium on commercial banking activities by either federal or state authorities action shall have been declaredtaken and be continuing, and no statute, rule, regulation, judgment, administrative interpretation, order or injunction shall have been enacted, promulgated, entered, enforced or deemed applicable to the Merger, which would (i) make illegal or prohibit the consummation of the Merger or (ii) render the Company unable to effect the Merger;
(b) no action or proceeding brought by any governmental, regulatory or administrative agency, authority or commission shall have been instituted and be pending that would be reasonably likely to result in any of the consequences referred to in clauses (i) or (ii) of Section 6.02(a) above; and there shall be no proceeding or other action (including without limitation, relating to health care, regulatory, environmental and pension matters) pending or threatened against the Parent or its Subsidiaries which is reasonably likely to have a Material Adverse Effect;
(c) the representations and warranties of Parent and Sub contained in Article IV hereof (without regard to any materiality exception or provisos therein) shall be true and correct in all material respects on the Closing Date as though such representations and warranties were made at and on such date, except (i) for those untruths or inaccuracies which would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (ii) for changes permitted or contemplated by the Transactions Documents. For purposes of the foregoing, notwithstanding any other provisions of this Agreement to the contrary, the effects arising out of or relating to (i) economic conditions affecting the U.S. economy or the health care industry generally, (ii) the proposal, adoption or implementation after the date hereof of any law, statute, rule or regulation relating to health care, Medicaid or Medicare, including, without limitation, the proposal, adoption or implementation of prospective payment systems and "salary equivalency" rates (including amendments to any salary equivalency rates currently in effect), (iii) the Merger or the announcement thereof, including without limitation, resignations of key employees; (iv) any action or event permitted by Section 5.1(a) hereof; or (v) any matter identified in Section 3.04 of the Company Disclosure Letter shall not constitute a circumstance which will be a basis for asserting the existence or occurrence of a Material Adverse Effect. The existence or occurrence of a Material Adverse Effect notwithstanding the exclusions referred to in the immediately preceding sentence is hereinafter referred to as an "Omnibus Parent Material Adverse Event."
(d) Parent shall have entered into the Definitive Financing Agreements referred to in Section 5.14.
(e) Parent and Sub shall have performed in all material respects all covenants, agreements and obligations required to be performed by them under the Agreement at or prior to the Effective Time.
SECTION 6.03 Additional Conditions to the Parent's and the Sub's Obligations to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction, or waiver by Parent and Sub, prior to the proposed Effective Time, of the following conditions:
(a) no action shall have been taken and be continuing, and no statute, rule, regulation, judgment, administrative interpretation, order or injunction shall have been enacted, promulgated, entered, enforced or deemed applicable to the Merger, which would (i) make illegal or prohibit the consummation of the Merger or (ii) render Parent or Sub unable to effect the Merger;
(b) no action or proceeding brought by any governmental, regulatory or administrative agency, authority or commission shall have been instituted and be pending that would be reasonably likely to result in any of the consequences referred to in clauses (i) or (ii) of Section 6.03(a) above; and there shall be no proceeding or other action (including, without limitation, relating to health care, regulatory, environmental and pension matters) pending or threatened against the Company or its Subsidiaries which is reasonably likely to have a Material Adverse Effect;
(c) during the 30 day period ending on the Closing Date, there shall not have occurred and be continuing the declaration of any banking moratorium or any suspension of payments in respect of banks or any material limitation (whether or not mandatory) on the extension of credit by lending institutions in the United States; and
(hd) no material outbreak the representations and warranties of the Company contained in Article III hereof (without regard to any materiality exceptions or escalation provisos contained therein) shall be true and correct in all respects on the Closing Date as though such representations and warranties were made at and on such date, except (i) for those untruths or inaccuracies which would not, singly or in the aggregate, reasonably be expected to have Material Adverse Effect and (ii) for changes expressly permitted or contemplated by the Transaction Documents. For purposes of hostilitiesthe foregoing, acts notwithstanding any other provisions of terrorism this Agreement to the contrary, the effects arising out of or other domestic or international calamity, crisis or change in political, financial or relating to (i) economic conditions affecting the U.S. economy or other material the health care industry generally, (ii) the proposal, adoption or implementation after the date hereof of any law, statute, rule or regulation relating to health care, Medicaid or Medicare, including, without limitation, the proposal, adoption or implementation of prospective payment systems and "salary equivalency" rates (including amendments to any salary equivalency rates currently in effect), (iii) the Merger or the announcement thereof, including without limitation, resignations of key employees; (iv) any action or event materially affecting financial markets permitted by Section 5.1(a) hereof; or (v) any matter identified in Section 3.014 of the Parent Disclosure Letter shall not constitute a circumstance which will be a basis for asserting the existence or occurrence of a Material Adverse Effect. The existence or occurrence of a Material Adverse Effect notwithstanding the exclusions referred to in the United States immediately preceding sentence is hereinafter referred to as an "Omnibus Company Material Adverse Event."
(e) The Company shall have occurredperformed in all material respects all covenants, agreements and obligations required to be performed by it under this Agreement at or prior to the Effective Time.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- MergerSECTION 5.1 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY, PARENT AND MERGER SUB. The respective obligations of each party hereto the Company, Parent and Merger Sub to effect consummate the Merger are ------ subject to the satisfaction at or prior to (or, if permitted by applicable law, waiver by the Effective Time party for whose benefit such condition exists) of the following conditions:
(a) the Company (or the applicable Subsidiary) shall have obtained the Company Stockholder Approvalall necessary consents, authorizations, approvals or waivers of and Parent shall have obtained made all necessary filings or registrations with, any Governmental Entity or other person or entity which are listed on Exhibit F hereto, in each case, for the Parent Shareholder Approval;applicable matter listed on such Exhibit.
(b) any applicable waiting period under the HSR Act relating to the Merger shall have expired or been terminated; and
(c) no statute, rule, regulation, executive order, decree, ruling temporary restraining order, preliminary or permanent injunction shall have been enacted, entered, promulgated or enforced other order issued by any United States federal court of competent jurisdiction or state court or United States federal or state other Governmental Entity that prohibits, restrains, enjoins or restricts other legal restraint or prohibition preventing the consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act shall be in effect and no proceeding or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) lawsuit shall have been givencommenced by any Governmental Entity or other third party for the purpose of obtaining any such order, obtained decree, injunction, restraint or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act prohibition and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities written notice shall have been declaredreceived from any such Governmental Entity indicating an intent to restrain, prevent, materially delay or restructure the transaction contemplated hereby; and
(h) no material outbreak or escalation provided, however, that each of hostilitiesParent, acts Merger Sub and the 35 41 Company shall have used reasonable efforts to prevent the entry of terrorism any such injunction or other domestic order or international calamity, crisis the commencement of any such proceeding or change in political, financial or economic conditions lawsuit and to appeal as promptly as possible any injunction or other material event materially affecting financial markets in the United States shall have occurredorder that may be entered.
Appears in 1 contract
Samples: Merger Agreement (Global Power Equipment Group Inc/)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 8.1 Conditions to Each Party's Obligations the Companies' Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto all Companies to effect the Merger are ------ transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by a writing signed by CCI and IBID:
(a) This Agreement and the Company transactions contemplated hereby shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approval;shareholders of IBID in accordance with applicable law or by a written consent of stockholders of IBID holding majority of the shares of capital stock of IBID entitled to vote on the Merger (the "Required Stockholders' Consent").
(b) no No preliminary or permanent injunction or other order by any federal, state, or foreign court of competent jurisdiction which prohibits the consummation of any Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, promulgated issued, promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;. Other than the filing of Articles of Merger with the Department of State for the State of Florida, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any governmental entity (all of the foregoing, "Consents") which are necessary for the consummation of the Merger, other than Consents the failure to obtain which would have no material adverse effect on the consummation of the Merger or on the Surviving Corporation and its subsidiaries, taken as a whole, shall have been filed, occurred, or been obtained (all such permits, approvals, filings, and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect. All state securities or blue sky permits and other authorizations necessary to issue the CCI Shares in exchange for the Shares of IBID and to consummate the Merger shall have been received.
(c) There shall not be any waiting period action taken, or any statute, rule, regulation, or order enacted, entered, enforced, or deemed applicable to the Merger under the HSR Act or any other material foreignMerger, by any federal or state antitrustgovernmental entity which, competition in connection with the grant of a Requisite Regulatory Approval, imposes any condition or fair trade law shall have terminated restriction upon any Surviving Corporation or expired;its subsidiaries (or, in the ease of any disposition of assets required in connection with such Requisite Regulatory Approval, upon any Company or its subsidiaries), including, without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or business benefits of the transactions contemplated by this Agreement as to render inadvisable the consummation of the Merger.
(d) any governmental or regulatory notices, approvals or The other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of the other Company contained in this Agreement shall be true and correct in all material respects at and as it was operated prior thereto (other than under of the HSR Act or any other material foreignEffective Time as if made at and as of such time, federal or state antitrustexcept as contemplated by this Agreement, competition or fair trade law) and each Company shall have been givenreceived a certificate of the Chairman of the Board, obtained the President, or complied with, an Executive Vice President of the other Company as applicable except where to the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;satisfaction of this condition.
(e) the S-4 Each Company shall have become effective obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby, under the Securities Act any loan or credit agreement, note, mortgage, indenture, lease, license, or other agreement or instrument, except those for which failure to obtain such consents and shall not be the subject of any stop order approvals would not, individually or proceedings seeking a stop order;
(f) no suspension in the trading aggregate, have a material adverse effect on the Surviving Corporation and its subsidiaries taken as a whole or upon the consummation of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredtransactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Care Concepts Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 6.01 Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or waiver, where permissible, prior to the proposed Effective Time Time, of the following conditions:
(a) Company stockholder approval of this Agreement and the Company Stock Issuance Proposal shall have been obtained as required by and in accordance with applicable law and the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder ApprovalCompany's Certificate of Incorporation;
(b) no statute, rule, regulation, executive order, decree, ruling decree or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal governmental authority against the Parent, the Sub or state Governmental Entity the Company and be in effect that prohibits, restrains, enjoins prohibits or restricts the consummation of the MergerMerger or makes such consummation illegal (each party agreeing to use commercially reasonable efforts to have any such prohibition lifted);
(c) the conditions to each party's obligations to effect the GranCare Merger (other than the consummation of the Merger) shall have been satisfied or waived; provided, however, that neither the Company nor the Surviving Corporation may waive any such condition or modify or amend the terms of such merger agreement without the prior written consent of Parent; and
(d) the waiting period applicable to the consummation of the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have expired or been terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary and all filings required to consummate the transactions contemplated hereby and be made prior to operate the Surviving Corporation after the Effective Time with, and all consents, approvals, authorizations and permits required to be obtained prior to the Effective Time from, any Governmental Authority in all material respects as it was operated prior thereto (other than under connection with the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) consummation of the Merger shall have been givenmade or obtained (as the case may be), obtained or complied with, as applicable except where the failure to obtain such consents, approvals, authorizations and permits would not be given, obtained or complied with shall not have reasonably likely to result in a Material Adverse Effect on the Company or to materially adversely affect the consummation of the Merger.
(e) no action shall have been taken and be continuing, and no statute, rule, regulation, judgment, administrative interpretation, order or injunction shall have been enacted, promulgated, entered, enforced or deemed applicable to the Merger, which would make illegal or prohibit the consummation of the Merger; and
(f) the conditions set forth in the Debt Commitment shall have been satisfied or waived (other than the conditions relating to the consummation of the Merger and the GranCare Merger);
Section 6.02 Additional Condition to the Company's Obligation to Effect the Merger. The obligation of the Company to effect the Merger is subject to the satisfaction or waiver by the Company, prior to the proposed Effective Time, of the following conditions:
(a) the Solvency Letter Condition; and
(b) the representations and warranties of the Parent and the Sub set forth in Article III shall be true and correct in all material respects as of the Effective Time as though made on and as of that time, and the Parent and the Sub shall have (i) executed and delivered the Stockholders Agreement, (ii) amended its Bylaws as contemplated by Section 5.15, and (iii) performed in all material respects all other covenants and agreements required to be performed by it under this Agreement at or prior to the Effective Time.
Section 6.03 Additional Conditions to the Parent's and the Sub's Obligations to Effect the Merger. The obligations of the Parent and the Sub to effect the Merger shall be subject to the satisfaction or waiver by the Parent and the Sub, prior to the proposed Effective Time, of the following conditions:
(a) no action or proceeding brought by any governmental, regulatory or administrative agency, authority or commission shall have been instituted and be pending that would be reasonably likely to result in any of the consequences referred to in clauses (b) or (e) of Section 6.01 above and there shall be no proceeding or other action (including, without limitation, relating to health care, regulatory, environmental and pension matters) pending or threatened against the Company, GranCare or their respective subsidiaries brought by any governmental, regulatory or administrative agency, authority or commission which is reasonably likely to have a Material Adverse Effect;
(b) during the 30 calendar day period ending on the date of the Closing, there shall not have occurred (i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market in the United States, (ii) the declaration of any banking moratorium or any suspension of payments in respect of banks or any material limitation (whether or not mandatory) on the extension of credit by lending institutions in the United States, (iii) the commencement of a war, material armed hostilities or any other material international or national calamity involving the United States having a significant adverse effect on the functioning of the financial markets in the United States, or (iv) in the case of any of the foregoing existing at the time of the execution of the Merger Agreement, a material acceleration or worsening thereof;
(c) since September 30, 1996, with respect to the Company, and December 31, 1996, with respect to GranCare, no change shall have occurred or have been threatened in the business, operations, prospects, properties or condition (financial or other) of the Company, GranCare or any of their respective subsidiaries that would have or would be reasonably likely to have a Material Adverse Effect provided, that the transactions contemplated by the Recapitalization Agreement and the Merger Agreement shall not be deemed to be such a materially adverse change;
(d) the representations and warranties of the Company set forth in Article IV shall be true and correct in all material respects as of the Effective Time as though made on and as of that time, and the ParentCompany shall have (i) executed and delivered the Stockholders Agreement, (ii) amended the Rights Agreement as contemplated by clause (b) of Section 5.09, and (iii) performed in all material respects all other covenants and agreements required to be performed by them under this Agreement at or prior to the Effective Time;
(e) the S-4 transactions contemplated by the Debt Commitment shall have become effective been consummated pursuant to definitive agreements in form and substance reflecting the terms of the Debt Commitment and otherwise reasonably satisfactory to Parent; any other refinancings, or amendments or consents relating to existing financing of the Company or GranCare made or obtained in connection with the Merger or the GranCare Merger shall be reasonably satisfactory to Parent; and all proceeds received by the Surviving Corporation on the Closing Date under or as a result of the Securities Act transactions contemplated by the Debt Commitment and as a result of the Merger shall not be used (or shall be usable) solely to consummate the subject transactions contemplated by this Agreement and the GranCare Merger Agreement, including payment of any stop order or proceedings seeking a stop orderfees and expenses thereof, the refinancing of existing indebtedness and to provide working capital to the Surviving Corporation and its subsidiaries;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange Company's stockholders shall have occurred;
approved the Amendment Proposal, including specifically the affirmative vote of not less than 66 2/3% of the outstanding Shares as of the record date (g) no general moratorium on commercial banking activities including as to the amendments to Articles Tenth and Eleventh of the Company's Certificate of Corporation, as in effect prior to such vote, the affirmative vote of not less than 66 2/3% of such shares excluding Shares owned by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation a "Related Person" as defined in such Company Certificate of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredIncorporation).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Chase Equity Associates L P)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 7.1 Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The ----------------------------------------------------------- respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company There shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approval;
(b) no not be in effect any statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state other order of a court or United States federal governmental or state Governmental Entity regulatory agency of competent jurisdiction directing that prohibitsthe transactions contemplated herein not be consummated; provided, restrainshowever, enjoins that prior to invoking this condition each party shall use all commercially reasonable efforts to have any such decree, ruling, injunction or restricts order vacated.
(b) All governmental consents, orders and approvals legally required for the consummation of the Merger;Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Effective Time, and the waiting periods under the HSR Act shall have expired or been terminated.
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law Company Shareholder Approval shall have terminated or expired;been obtained.
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) Parent Shareholder Approval shall have been givenobtained in accordance with applicable law, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Nasdaq and Parent;'s Articles of Incorporation.
(e) The shares of Parent Common Stock issuable in connection with the S-4 Merger shall have been approved for trading on the Nasdaq, subject to official notice of issuance.
(f) The Registration Statement shall have become effective under the Securities Act Act, and all post-effective amendments shall not be have been declared effective or shall have been withdrawn; and no stop order suspending the subject effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the knowledge of the parties, threatened by the SEC.
(g) There shall have been obtained any and all material permits, approvals and consents of securities or "blue sky" authorities of any stop order jurisdiction that are necessary so that the consummation of the Merger and the transactions contemplated thereby will be in compliance with applicable laws, the failure to comply with which would have a Parent Material Adverse Effect.
(h) In the absence of a Reverse Merger Circumstance, the Company and Parent shall have received the Tax Opinion.
7.2 Conditions to the Company's Obligations to Effect the Merger. The ------------------------------------------------------------ obligations of the Company to effect the Merger are subject to the satisfaction at or proceedings seeking prior to the Effective Time of the following additional conditions:
(a) The representations and warranties of Parent and Newco contained in this Agreement shall be true and correct (in all material respects, in the case of representations and warranties not already qualified as to materiality by their terms) at and as of the Effective Time as though made on and as of such date (except (i) for changes specifically permitted by this Agreement and (ii) that those representations and warranties which address matters only as of a stop order;particular date shall remain true and correct as of such date), and the Company shall have received a certificate of the President or a Vice President of Parent to the foregoing effect.
(b) Parent and Newco shall have performed and complied with in all material respects their obligations under this Agreement to be performed or complied with on or prior to the Effective Time, and the Company shall have received a certificate of the President or a Vice President of Parent to the foregoing effect.
(c) There shall have been no Parent Material Adverse Effect since the date of this Agreement.
(d) Parent shall have increased the number of its Board of Directors to include Xxxx X. Xxxxx as a Class A Director. Such person so appointed shall serve until such time as his successor has been duly elected, qualified, or appointed. Parent's Board of Directors shall nominate Xx. Xxxxx for reelection in 2002 as a Class A Director, and support his reelection at Parent's 2002 annual meeting of shareholders.
7.3 Conditions to Parent's and Newco's Obligations to Effect the Merger. ------------------------------------------------------------------- The obligations of Parent and Newco to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following additional conditions:
(a) The representations and warranties of the Company contained in this Agreement shall be true and correct (in all material respects, in the case of representations and warranties not already qualified as to materiality by their terms) at and as of the Effective Time as though made on and as of such date (except (i) for changes specifically permitted by this Agreement and (ii) that those representations and warranties which address matters only as of a particular date shall remain true and correct as of such date), and Parent shall have received a certificate of the President or a Vice President of the Company to the foregoing effect.
(b) The Company shall have performed and complied with in all material respects its obligations under this Agreement to be performed or complied with on or prior to the Effective Time, and Parent shall have received a certificate of the President or a Vice President of the Company to the foregoing effect.
(c) No Distribution Date (as defined in the Company Rights Agreement) shall have occurred.
(d) All of the Company's Preferred Stock shall have been converted into shares of the Company's Common Stock.
(e) The Company shall have delivered to Parent agreements in the form of Exhibit C ("Company Affiliate Agreements") executed by each person who could reasonably be deemed to be an "affiliate" of the Company (as that term is used in Rule 145 of the Securities Act).
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities There shall have been declared; and
(h) no material outbreak or escalation Company Material Adverse Effect since the date of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredthis Agreement.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 5.1 Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company this Agreement shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approvalstockholders of the Company;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state or foreign court or United States federal or state or foreign Governmental Entity that prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act and any foreign antitrust or any other material foreign, federal or state antitrust, competition or fair trade law similar laws shall have terminated or expired;
(d) any other governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation Company's business after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreignis presently conducted, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;applicable; and
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order, and Parent shall have received all state securities laws or "blue sky" permits and authorizations necessary to issue shares of Parent Common Stock in exchange for Shares in the Merger.
Section 5.2 Conditions to the Obligations of the Company. The obligation of the Company to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the representations and warranties of Parent and Acquisition contained in this Agreement (other than those contained in Section 3.10) shall be true and correct as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date, and in any event and except to the extent that the aggregate of all breaches thereof would not have a Material Adverse Effect) and the representations and warranties of Parent and Acquisition contained in Section 3.10 shall be true and correct in all respects at and as of the Effective Time, and, at the Closing, Parent and Acquisition shall have delivered to the Company a certificate to that effect, executed by two (2) executive officers of Parent and Acquisition;
(b) each of the covenants and obligations of Parent and Acquisition to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time, and, at the Closing, Parent and Acquisition shall have delivered to the Company a certificate to that effect, executed by two (2) executive officers of Parent and Acquisition; provided, however, that in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act) or obtaining the consent or approval of any Governmental Entity whose consent or approval may be required to consummate the transactions contemplated by this Agreement, Parent shall not be (i) required, or be construed to be required, to sell or divest any material assets or business or to restrict in any material respect any business operations in order to obtain the consent or successful termination of any review of any such Governmental Entity regarding the transactions contemplated hereby or (ii) prohibited from owning, and no material limitation shall be imposed on Parent's ownership of, any material portion of the Company's business or assets;
(c) the shares of Parent Common Stock issuable to the Company's stockholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been approved for quotation on the Nasdaq National Market, upon official notice of issuance; and
(d) the Company shall have received the opinion of tax counsel to the Company or tax counsel to Parent to the effect that (i) the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on the representations set forth in Exhibits B-1 and B-2 and such other representations as such counsel reasonably deems appropriate and such opinion shall not have been withdrawn or modified in any material respect.
Section 5.3 Conditions to the Obligations of Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the representations and warranties of the Company contained in this Agreement (other than those contained in Section 2.25) shall be true and correct as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date, and in any event, and except to the extent that the aggregate of all breaches thereof would not have a Material Adverse Effect) and the representations and warranties of the Company contained in Section 2.25 shall be true and correct in all respects as of the Effective Time, and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company;
(b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company;
(c) since the date of this Agreement, there shall have been no material adverse change in the Intellectual Property owned by or licensed to the Company, other than such changes resulting from requests from Parent and other than such changes resulting from this Agreement or the announcement of this Agreement or the consummation of the Merger or the transactions contemplated hereby;
(d) the Company's officers and directors shall have entered into lock-up agreements in substantially the form entered into by officers and directors of Parent in connection with its initial public offering (and with release and expiration dates identical thereto) covering all Parent Shares issued in the Merger and all stock options assumed in the Merger, which total approximately 150,000 shares;
(e) since the date of this Agreement, there shall have been no litigation commenced against the Company that would be required to be disclosed by Item 103 of Regulation S-K (other than any litigation brought against the Company, any member of the Company Board or any officer of the Company in respect of the discussions or negotiations relating to this Agreement or the announcement of this Agreement or the consummation of the Merger or the transactions contemplated hereby); provided, that for the purposes of this Subsection, Item 103, Instruction 2 shall be 20% rather than 10%;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange Parent shall have occurred;received the opinion of tax counsel to Parent or tax counsel to the Company to the effect that (i) the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on the representations set forth in Exhibits B-1 and B-2 and such other representations as such counsel reasonably deems appropriate, and such opinion shall not have been withdrawn or modified in any material respect; and
(g) no general moratorium on commercial banking activities by either federal or state authorities Parent shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets received amendments to the License Agreements with the customers identified as having licenses in the United States shall have occurredlast paragraph of Section 2.7 of the Company Disclosure Schedule establishing that each of these agreements provide for the grant of a nonexclusive license.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 7.1 Conditions to Each Party's Obligations the Companies' Obligation to Effect the ---------------------------------------------------- Merger/Reorganization Representations. The respective obligations of each party hereto the Companies to effect the Merger are ------ transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by a writing signed by HBOA and LSC:
(a) This Agreement and the Company transactions contemplated hereby shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approval;shareholders of LSC in accordance with applicable law.
(b) no No preliminary or permanent injunction or other order by any federal, state, or foreign court of competent jurisdiction which prohibits the consummation of any Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, promulgated issued, promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;.
(c) Other than the filing of Articles of Merger with the Department of State for the State of Florida, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any waiting period applicable to governmental entity (all of the Merger under foregoing, "Consents") which are reasonably necessary for the HSR Act or any other material foreignconsummation of the Merger, federal or state antitrust, competition or fair trade law shall have terminated been filed, occurred, or expired;been obtained (all such permits, approvals, filings, and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect.
(d) any governmental All state securities or regulatory notices, approvals or blue sky permits and other requirements authorizations necessary to issue the HBOA Shares (including satisfactory evidence of the nature of the LSC Shareholders) in exchange for the Shares of LSC and to consummate the Merger shall have been received.
(e) There shall not be any action taken, or any statute, rule, regulation, or order enacted, entered, enforced, or deemed applicable to any Merger, by any federal or state governmental entity which, in connection with the grant of a Requisite Regulatory Approval, imposes any condition or restriction upon any Surviving Corporation or its subsidiaries (or, in the ease of any disposition of assets required in connection with such Requisite Regulatory Approval, upon any Company or its subsidiaries), including, without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or business benefits of the transactions contemplated hereby and by this Agreement as to operate render inadvisable the Surviving Corporation after consummation of the Effective Time Merger.
(f) The other Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of the other Company contained in this Agreement shall be true and at and as it was operated prior thereto (other than under of the HSR Act or any other material foreignEffective Time as if made at and as of such time, federal or state antitrustexcept as contemplated by this Agreement, competition or fair trade law) and each Company shall have been givenreceived a certificate of the Chairman of the Board, obtained the President, or complied with, an Executive Vice President of the other Company as applicable except where to the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject satisfaction of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;this condition.
(g) Prior to the Effective Time, HBOA will be in control of Acquisition Sub within the meaning of Section 368(c) of the Code. HBOA and Acquisition Sub have no general moratorium on commercial banking activities by either federal present plan or state authorities shall have intention to reacquire any of the HBOA Shares issued in the merger, other than as a result of the terms and conditions of this Agreement. No stock of Acquisition Sub has been declared; anddistributed to LSC or to the LSC Shareholders pursuant to this Agreement.
(h) HBOA has no material outbreak present plans or escalation intention to liquidate the Surviving Corporation or to merge the Surviving Corporation with and into another corporation, to sell or otherwise dispose of hostilities, acts the stock of terrorism the Surviving Corporation or other domestic to cause the Surviving Corporation to sell or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets otherwise dispose of its assets except for dispositions made in the United States shall have occurredordinary course of a business. HBOA and Acquisition Sub are participating in the Merger for good and valid business reasons and not for tax purposes. Following the Effective Time, the Surviving Corporation has no present plan or intent to issue additional shares of its stock that would result in HBOA losing control of Surviving Corporation within the meaning of Section 368(c)(1) of the Code, and will not do so voluntarily prior to one year following the Effective Time. Following the Effective Time, HBOA and Surviving Corporation intend to continue substantially all the historic business of LSC.
(i) Dundas Systems, Inc. agrees that it will surrender warrants to purchase 432,452 shares of common stock of HBOA and Harvey Judkowitz will surrender options to purchase 80,000 shares of XXXX'x xxxxxx xxock.
Appears in 1 contract
Samples: Merger Agreement (Hboa Holdings Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The respective obligations of each party hereto to effect the Merger are ------ shall be subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) any waiting period applicable to the Company consummation of the Merger under the HSR Act shall have obtained the Company Stockholder Approvalexpired or been terminated, and Parent no action shall have obtained been instituted by the Parent Shareholder ApprovalDepartment of Justice or Federal Trade Commission challenging or seeking to enjoin the consummation of this transaction, which action shall have not been withdrawn or terminated;
(b) no statute, rule, regulation, executive order, decree, ruling or preliminary or permanent injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that which prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to this Agreement and consummation of the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired;been duly approved and adopted by the holders of outstanding Common Stock by the Requisite Company Vote; and
(d) no court or Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any governmental Law, order, injunction or regulatory noticesdecree (whether temporary, approvals preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the Merger or the other requirements necessary to consummate the transactions contemplated hereby and or that, individually or in the aggregate with all other such Laws, orders, injunctions or decrees, could reasonably be expected to operate the Surviving Corporation after the Effective Time result in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Parent Material Adverse Effect on the Company or a Company Material Adverse Effect on the Parent;
(e) the S-4 Effect, and no Governmental Entity shall have become effective under instituted any proceeding or threatened to institute any proceeding seeking any such Law, order, injunction or decree; provided, however, that the Securities Act and provisions of this Section 6.1(d) shall not be the subject of apply to any stop order party that has directly or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq indirectly solicited or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredencouraged any such Action.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 7.1 Conditions to Each Party's Obligations the Companies' Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto the other Company to effect the Merger are ------ transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by a writing signed by BPMI and RCI:
(a) This Agreement and the Company transactions contemplated hereby shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approval;shareholders of RCI in accordance with applicable law or by a written consent of stockholders of RCI holding majority of the shares of capital stock of RCI entitled to vote on the Merger (the "Required Stockholders' Consent").
(b) no No preliminary or permanent injunction or other order by any federal, state, or foreign court of competent jurisdiction which prohibits the consummation of any Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, promulgated issued, promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;. Other than the filing of Articles of Merger with the Secretary of State for the State of Florida, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any governmental entity (all of the foregoing, "Consents") which are necessary for the consummation of the Merger, other than Consents the failure to obtain which would have no material adverse effect on the consummation of the Merger or on the Surviving Corporation and its subsidiaries, taken as a whole, shall have been filed, occurred, or been obtained.
(c) There shall not be any waiting period action taken, or any statute, rule, regulation, or order enacted, entered, enforced, or deemed applicable to the Merger under the HSR Act or any other material foreignMerger, by any federal or state antitrustgovernmental entity which imposes any condition or restriction upon any Surviving Corporation or its subsidiaries including, competition without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or fair trade law shall have terminated or expired;business benefits of the transactions contemplated by this Agreement as to render inadvisable the consummation of the Merger.
(d) any governmental Each Company shall have obtained the consent or regulatory notices, approvals approval of each person whose consent or other requirements necessary to consummate approval shall be required in connection with the transactions contemplated hereby hereby, under any loan or credit agreement, note, mortgage, indenture, lease, license, or other agreement or instrument, except those for which failure to obtain such consents and to operate approvals would not, individually or in the aggregate, have a material adverse effect on the Surviving Corporation after and its subsidiaries taken as a whole or upon the Effective Time in all material respects as it was operated prior thereto (other than under consummation of the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredtransactions contemplated hereby.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. SECTION IV.1 Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or waiver, prior to the Effective Time Time, of the following conditions:
(a) the Company shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approval;
(b) no statute, rule, regulation, executive order, decree, ruling injunction or injunction other order (whether temporary, preliminary or permanent), shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins or restricts governmental authority which is in effect and has the effect of prohibiting the consummation of the Merger; provided that each of the parties shall have used its best efforts to prevent the entry of any injunction or other order and to appeal as promptly as possible any injunction or other order that may be entered;
(b) there shall not be pending or threatened against the Partnership, the Parent, or the Company, or any affiliate of the Partnership, the Parent, or the Company, or the property or business of the Partnership, the Parent, or the Company, any other action, suit or proceeding involving a claim at law or in equity or before or by any federal, state, or municipal or other government department, commission, board, bureau, agency or instrumentality, domestic or foreign, relating to the Merger or this Agreement that would be reasonably likely to have a material adverse effect on the condition, financial or otherwise, of the Partnership, the Parent, or the Company;
(c) the parties shall have received any necessary governmental consents or approvals and the waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act or any other material foreignof 1976, federal or state antitrustas amended, competition or fair trade law if any, shall have expired or been terminated or expired;and a 20-day period shall have elapsed from the date of mailing to holders of LP Units of an information statement with respect to the Merger; and
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with Fairness Opinion shall not have a Material Adverse Effect on been withdrawn or modified in any manner materially adverse to the Parent, the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredPartnership.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 7.1 Conditions to Each Party's Obligations All Companies' Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto all Companies to effect the Merger are ------ transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by all, but not less than all, Companies:
(a) Any waiting period applicable to the Company consummation of the Merger under the HSR Act shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approval;expired or been terminated.
(b) no The Registration Statement shall have become effective in accordance with the provisions of the Securities Act.
(c) This Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite vote of the stockholders of each Company in accordance with applicable law.
(d) No preliminary or permanent injunction or other order by any federal, state or foreign court of competent jurisdiction which prohibits the consummation of the Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, issued, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;
. Other than the filing of a Certificate of Merger with the Secretary of State of Delaware, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any governmental entity (call of the foregoing, "CONSENTS") any waiting period applicable which are necessary for the consummation of the Merger, other than Consents the failure to obtain which would have no material adverse effect on the consummation of the Merger under or on the HSR Act or any other material foreignSurviving Corporation and its subsidiaries, federal or state antitrusttaken as a whole, competition or fair trade law shall have terminated been filed, occurred or expired;
been obtained (dall such permits, approvals, filings and consents and the lapse of all such waiting periods being referred to as the "REQUISITE REGULATORY APPROVALS") any governmental and all such Requisite Regulatory Approvals shall be in full force and effect. All state securities or regulatory notices, approvals or blue sky permits and other requirements authorizations necessary to issue the Urohealth Shares in exchange for the Imagyn Shares and to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) Merger shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;received.
(e) the S-4 shall have become effective under the Securities Act and There shall not be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the subject Merger, by any federal or state governmental entity which, in connection with the grant of a Requisite Regulatory Approval, 29 imposes any condition or restriction upon the Surviving Corporation or its subsidiaries (or, in the case of any stop order disposition of assets required in connection with such Requisite Regulatory Approval, upon any Company or proceedings seeking a stop order;its subsidiaries), including, without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or business benefits of the transactions contemplated by this Agreement as to render inadvisable the consummation of the Merger.
(f) no suspension The aggregate amount of cash required to be paid on account of all Excluded Shares and with respect to any cash payments for fractional Urohealth Shares pursuant to Section 3.4, shall not exceed ten percent (10%) of the value (determined in accordance with APB Opinion No. 16) of the trading of securities generally on Nasdaq or Urohealth Shares issuable in exchange for Imagyn Shares at the New York Stock Exchange shall have occurred;Effective Time.
(g) no general moratorium on commercial banking activities by either federal or state authorities Each Company shall have been declared; and
(h) no material outbreak or escalation received a letter, dated the Closing Date, of hostilitiesits regularly retained independent auditors, acts and in form and substance reasonably satisfactory to it to the effect that the Merger qualifies for "pooling of terrorism or other domestic or international calamity, crisis or change interests" treatment for financial reporting purposes and that such accounting treatment is in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredaccordance with generally accepted accounting principles.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. SECTION 7.1 Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect consummate the Merger are ------ subject to the satisfaction fulfillment at or prior to the Effective Time of each of the following conditions, any or all of which may be waived in whole or in part by the party being benefited thereby, to the extent permitted by applicable Law:
(a) the Company shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder ApprovalRequisite Vote;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction there shall have been enacted, entered, promulgated or enforced by not be in effect any United States federal or state court or United States federal or state Law of any Governmental Entity that prohibitsof competent jurisdiction, restrainsrestraining, enjoins enjoining or restricts the otherwise preventing consummation of the Merger;
(ci) any applicable waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have expired or been terminated, (ii) any relevant statutory, regulatory or other governmental waiting periods or approvals, whether domestic, foreign or supranational, the failure of which to have expired or been terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, be obtained or complied with, as applicable except where the failure to be givenin full force and effect, obtained would, either (A) individually or complied with shall not in the aggregate, have a Material Adverse Effect on the Company or the Surviving Corporation or (B) result in any violation of Law, shall have expired or been terminated or been obtained and be in full force and effect, as the case may be, or (iii) in the event that the Merger constitutes a concentration with a Community dimension within the scope of the ECMR, the European Commission shall not have indicated prior to Closing Date that it intends to initiate proceedings under the ECMR in respect of the Merger nor refer the transactions or any matters arising therefrom to the competent authority of a Member State under Article 9(1) of the ECMR;
(d) any registration statement (including any necessary supplement or amendment) with respect to the ProLogis Common Stock owned by the Company and filed pursuant to this agreement (a "ProLogis Registration Statement") shall have been declared effective by the SEC, no stop order shall have been issued with respect to such ProLogis Registration Statement and such ProLogis Registration Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
SECTION 7.2 Conditions to the Parent's Obligations to Effect the Merger. The obligations of the Parent to consummate the Merger are subject to the fulfillment at or prior to the Effective Time of each of the following conditions, any or all of which may be waived in whole or in part by the Parent, to the extent permitted by applicable Law:
(a) No Material Adverse Effect on the Company shall have occurred;
(b) the representations and warranties of the Company set forth in this Agreement shall be true and accurate as of the Closing Date as though made on or as of such date (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and accurate as of such date or with respect to such period) and the Company shall not have breached or failed to perform or comply with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it except, in each case where the failure of such representations and warranties to be true and accurate (without giving effect to any limitation as to "materiality" or "material adverse effect" set forth therein), or the failure to perform or comply with such obligations, agreements or covenants, do not or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect on the ParentCompany;
SECTION 7.3 Conditions to the Company's Obligations to Effect the Merger. The obligations of the Company to consummate the Merger are subject to the fulfillment at or prior to the Effective Time of each of the following conditions, any or all of which may be waived in whole or in part by the Company, to the extent permitted by applicable Law:
(ea) the S-4 representations and warranties of the Parent or Merger Sub set forth in this Agreement, shall have become effective under be true and accurate as of the Securities Act Closing Date as though made on or as of such date (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and accurate as of such date or with respect to such period) and the Parent or Merger Sub shall not have breached or failed to perform or comply with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it except, in each case where the subject failure of such representations and warranties to be true and accurate (without giving effect to any stop order limitation as to "materiality" or proceedings seeking a stop order;
(f) no suspension "material adverse effect" set forth therein), or the failure to perform or comply with such obligations, agreements or covenants, do not or would not reasonably be expected to, individually or in the trading of securities generally aggregate, have a Material Adverse Effect on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredParent.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The respective obligations of each party hereto to effect the Merger are ------ shall be subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) any waiting period applicable to the Company consummation of the Merger under the HSR Act shall have obtained the Company Stockholder Approvalexpired or been terminated, and Parent no action shall have obtained been instituted by the Parent Shareholder ApprovalDepartment of justice or Federal Trade Commission challenging or seeking to enjoin the consummation of this transaction, which action shall have not been withdrawn or terminated;
(b) no statute, rule, regulation, executive order, decree, ruling or preliminary or permanent injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that which prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to this Agreement and consummation of the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired;been duly approved and adopted by the holders of outstanding Common Stock by the Requisite Company Vote; and
(d) no court or Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any governmental Law, order, injunction or regulatory noticesdecree (whether temporary, approvals preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the Merger or the other requirements necessary to consummate the transactions contemplated hereby and or that, individually or in the aggregate with all other such Laws, orders, injunctions or decrees, could reasonably be expected to operate the Surviving Corporation after the Effective Time result in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Parent Material Adverse Effect on the Company or a Company Material Adverse Effect on the Parent;
(e) the S-4 Effect, and no Governmental Entity shall have become effective under instituted any proceeding or threatened to institute any proceeding seeking any such Law, order, injunction or decree; provided, however, that the Securities Act and provisions of this Section 6.1(d) shall not be the subject of apply to any stop order party that has directly or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq indirectly solicited or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredencouraged any such Action.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 8.1 Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ shall be subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) any waiting period applicable to the Company consummation of the Merger under the HSR Act shall have obtained the Company Stockholder Approvalexpired or been terminated, and Parent no action shall have obtained been instituted by the Parent Shareholder ApprovalDepartment of Justice or Federal Trade Commission challenging or seeking to enjoin the consummation of this transaction, which action shall have not been withdrawn or terminated;
(b) no statute, rule, regulation, executive order, decree, ruling or preliminary or permanent injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that governmental authority having jurisdiction which prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable each of the Company and American General Corporation shall have made such filings, and obtained such permits, authorizations, consents, or approvals, required by Governmental Requirements to consummate the transactions contemplated hereby, and the appropriate forms shall have been executed, filed and approved as required by the corporate and insurance laws and regulations of the states of New York and such other states as may have jurisdiction over the transactions contemplated by this Agreement pursuant to insurance holding company or other insurance laws or regulations; provided, however, that such permits, authorizations, consents and approvals may be subject to (i) conditions customarily imposed by insurance regulatory authorities in transactions of the type contemplated by this Agreement or (ii) other conditions that would not reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of American General Corporation and its Subsidiaries taken as a whole (after giving effect to the Merger under consummation of the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expiredMerger);
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate this Agreement and the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) Merger shall have been given, obtained or complied with, as applicable except where adopted and approved by the failure to be given, obtained or complied with shall not have a Material Adverse Effect on requisite vote of the holders of the Company or a Material Adverse Effect on Common Stock in accordance with the Parentapplicable provisions of the NYBCL;
(e) the S-4 shareholders of American General Corporation shall have voted to approve the issuance of Shares of American General Corporation Common Stock as Merger Consideration;
(f) the Registration Statement shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;; and
(g) no general moratorium on commercial banking activities by either federal or state authorities the shares of American General Corporation Common Stock issuable to the Company's shareholders pursuant to this Agreement shall have been declaredauthorized for listing on the NYSE upon official notice thereof.
Section 8.2 Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of the following additional conditions:
(a) each of American General Corporation and Merger Sub shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time; the representations and warranties of American General Corporation and Merger Sub contained in this Agreement shall be true and correct in all respects as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (except to the extent such representations and warranties specifically relate to an earlier date, in which case as of such earlier date) except as contemplated by this Agreement and except to the extent that the failure of such representations and warranties to be true and correct would not, in the aggregate, be reasonably likely to result in a American General Corporation Material Adverse Effect; and the Company shall have received a certificate of the Chairman of the Board, the President, an Executive Vice President, a Senior Vice President or the Chief Financial Officer of American General Corporation as to the satisfaction of this condition;
(b) the Company shall have received an opinion from Debevoise & Xxxxxxxx, special counsel to the Company, dated the Effective Time, to the effect that, on the basis of certain facts, representations and assumptions set forth in such opinion which are consistent with the stated facts existing at the Effective Time, the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, and that American General Corporation, Merger Sub and the Company will each be a party to that reorganization within the meaning of Section 368(b) of the Code. In rendering the opinion described in the preceding sentence, such counsel may require and rely upon representations contained in certificates of officers of American General Corporation, Merger Sub and the Company and their respective subsidiaries received pursuant to Section 7.12 hereof; and
(hc) no material outbreak the audited GAAP financial statements of American General Corporation for the fiscal year ended December 31, 1996 shall not reflect any event, change or escalation of hostilitieseffect having, acts of terrorism or other domestic or international calamitywhich would be reasonably likely to have, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredaggregate, a American General Corporation Material Adverse Effect.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section SECTION 5.1. Conditions to Each Party's Obligations to ----------------------------------------- Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to ----------------- effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company this Agreement shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approvalshareholders of the Company;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that governmental authority which prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired, and any other governmental or regulatory notices or approvals required with respect to the transactions contemplated hereby shall have been either filed or received;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop orderorder and Parent shall have received all state securities laws or "blue sky" permits and authorizations necessary to issue shares of Parent Common Stock in exchange for the Shares in the Merger;
(e) Parent shall have received a letter from E&Y stating that the Merger will be accounted for under GAAP as a "pooling-of- interests," and such opinion shall not have been withdrawn or modified in any material respect; and
(f) Parent or an affiliate shall have purchased the Property as contemplated by Section 4.24 hereof.
SECTION 5.2. Conditions to the Obligations of the Company. -------------------------------------------- The obligation of the Company to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the representations of Parent and Acquisition contained in this Agreement or in any other document delivered pursuant hereto shall be true and correct in all material respects at and as of the Effective Time with the same effect as if made at and as of the Effective Time, and at the Closing Parent and Acquisition shall have delivered to the Company a certificate to that effect;
(b) each of the obligations of Parent and Acquisition to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and at the Closing Parent and Acquisition shall have delivered to the Company a certificate to that effect;
(c) the shares of Parent Common Stock issuable to the Company shareholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been authorized for listing on the NYSE upon official notice of issuance;
(d) the opinion of Xxxxxx, Xxxx & Xxxxxxxx, counsel to the Company, addressed to the Company and its shareholders to the effect that the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code shall have been delivered and such opinion shall not have been withdrawn or modified in any material respect;
(e) Parent shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of the Company, individually or in the aggregate, have a Material Adverse Effect on Parent; and
(f) there shall have been no events, changes or effects with respect to Parent or its subsidiaries having or which could reasonably be expected to have a Material Adverse Effect on Parent, and at the Closing Parent shall have delivered to the Company a certificate to that effect.
SECTION 5.3. Conditions to the Obligations of Parent and ------------------------------------------- Acquisition. The respective obligations of Parent and Acquisition to ----------- effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the representations of the Company contained in this Agreement or in any other document delivered pursuant hereto shall be true and correct in all material respects at and as of the Effective Time with the same effect as if made at and as of the Effective Time, and at the Closing the Company shall have delivered to Parent and Acquisition a certificate to that effect;
(b) each of the obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and at the Closing the Company shall have delivered to Parent and Acquisition a certificate to that effect;
(c) each Company Affiliate and each shareholder which is a party to the Shareholders Agreement shall have performed his or its respective obligations under the applicable Affiliate Letter and/or the Shareholders Agreement (if applicable), and Parent shall have received a certificate signed by each of them to such effect;
(d) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in order to permit the succession by the Surviving Corporation pursuant to the Merger to any obligation, right or interest of the Company or any subsidiary of the Company under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument, except for those for which failure to obtain such consents and approvals would not, in the reasonable opinion of Parent, individually or in the aggregate, have a Material Adverse Effect on the Company;
(e) the number of Company Dissenting Shares as of the Effective Time shall not exceed 5% of the then issued and outstanding shares;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange there shall have occurredbeen no events, changes or effects with respect to the Company or its subsidiaries having or which could reasonably be expected to have, a Material Adverse Effect on the Company and at the Closing the Company shall have delivered to Parent a certificate to that effect;
(g) no general moratorium on commercial banking activities by either federal the Employment Agreements shall be in full force and effect, and each of Xxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxx shall be in good physical and mental health and capable of performing his or state authorities her obligations under their respective Employment Agreements;
(h) the Non-Competition Agreements shall have been declaredbe in full force and effect; and
(hi) no material outbreak or escalation the Company Affiliate listed in Section 4.20 of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States Company Disclosure Schedule shall have occurredexecuted an Affiliate Letter.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 8.1 Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by both SCC and Coxxxx:
(a) Any waiting period applicable to the Company consummation of the Merger under the HSR Act shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approval;expired or been terminated.
(b) The Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and shall be effective at the Effective Time, and no stop order suspending effectiveness of the Registration Statement shall have been issued, no action, suit, proceedings or investigation by the SEC to suspend the effectiveness thereof shall have been initiated and be continuing, and all necessary approvals under state securities laws relating to the issuance of the TruServ Stock to be issued to SCC stockholders in connection with the Merger shall have been received.
(c) This Agreement and the transactions contemplated hereby shall have been approved and adopted (i) by the favorable vote of a majority of the votes
(d) No preliminary or permanent injunction or other order by any federal, state or foreign court of competent jurisdiction which prohibits the consummation of the Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, issued, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;
(c) any . Other than the filing of the Articles and Certificate of Merger with the Secretaries of State of Delaware and Pennsylvania, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting period applicable to the Merger under the HSR Act or any other material foreignperiods imposed by, federal or state antitrust, competition or fair trade law shall have terminated or expired;
(d) any governmental or regulatory noticesentity (all of the foregoing, approvals or other requirements "Consents") which are necessary to consummate for the transactions contemplated hereby and to operate consummation of the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (Merger, other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where Consents the failure to be givenobtain which would not materially, obtained adversely affect the consummation of the Merger or complied with shall not in the aggregate have a Material Adverse Effect on TruServ and its subsidiaries, taken as a whole, shall have been filed, occurred or been obtained (all such permits, approvals, filings and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect. Coxxxx shall have received all state securities or blue sky permits and other authorizations necessary to issue the shares of TruServ stock in exchange for the shares of SCC Stock and to consummate the Merger.
(e) There shall not be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger, by any federal or state governmental entity which, in connection with the grant of a Requisite Regulatory Approval, imposes any condition or restriction upon TruServ or its subsidiaries (or, in the case of any disposition of assets required in connection with such Requisite Regulatory Approval, upon Coxxxx or its subsidiaries or SCC or its subsidiaries), including, without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or business benefits of the transactions contemplated by this Agreement as to render inadvisable the consummation of the Merger.
(f) The parties have a received a letter from Wixxxxx Xxxxx & Company to the effect that, based upon and subject to certain assumptions, it is their opinion as investment bankers that as of the date of such letter, the exchange of TruServ stock for SCC Stock is fair from a financial point of view to the holders of such Coxxxx Xtock and SCC Stock.
(g) SCC shall have received a favorable IRS private letter ruling to
8.2 Conditions to Obligation of SCC to Effect the Merger. The obligation of SCC to effect the Merger shall be further subject to the satisfaction at or prior to the Effective Time of the following additional conditions, which may be waived by SCC:
(a) Coxxxx xhall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of Coxxxx xontained in this Agreement shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time, except as contemplated by this Agreement, and SCC shall have received a certificate of the President or an Executive Vice President of Coxxxx as to the satisfaction of this condition.
(b) SCC shall have received the opinion, dated the Closing Date, of Arxxxxxx & Lexx, counsel for Coxxxx, covering the matters set forth in Exhibit 8.2 (b).
(c) There shall not have occurred following the date of this Agreement and prior to the Closing Date any change, or any event involving a prospective change, in Coxxxx'x business assets, financial condition or results of operation which has had, or is reasonably likely to have, in the aggregate a Material Adverse Effect (other than as a result of changes or proposed changes in federal or state health care (including health care reimbursement) laws or regulations of general applicability or interpretations thereof, changes in generally accepted accounting principles and changes that could, under the circumstances, reasonably have been anticipated in light of disclosures made in writing by Coxxxx to SCC prior to the execution of this Agreement).
(d) The results of any environmental investigation performed by SCC pursuant to Section 7.1(c) shall not have revealed any condition likely to have a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredTruServ.
Appears in 1 contract
Samples: Merger Agreement (Cotter & Co)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions Pursuant to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The respective Merger Agreement, the obligations of each party hereto of General Xxxxx, Purchaser and Xxxxx’s to effect consummate the Merger are ------ subject to the satisfaction or waiver, where permissible, at or prior to the Effective Time Time, of each of the following conditions:
: (a) if required by law, the Company Merger Agreement shall have obtained been adopted by the Company Stockholder Approvalaffirmative vote of the holders of at least a majority of the issued and outstanding Shares, and Parent shall have obtained the Parent Shareholder Approval;
(b) unless the Offer shall have been terminated in accordance with the Merger Agreement, Purchaser shall have previously accepted for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer, (c) the waiting period applicable to the consummation of the Merger under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 shall have expired or been terminated and no statutegovernmental authority shall have issued any order, ruledecision, regulationjudgment, executive orderwrit, injunction, decree, ruling award or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity other determination under the HSR Act that prohibits, restrains, enjoins or restricts otherwise prohibits the consummation of the Merger;
, (cd) any waiting period applicable to the Merger under the HSR Act or any other material foreign, no federal or state antitrust, competition court of the United States of America or fair trade law any state thereof shall have terminated or expired;
(d) issued any governmental or regulatory noticesorder, approvals decision, judgment, writ, injunction, decree, award or other requirements necessary determination which is then in effect that enjoins or otherwise prohibits consummation of the Merger and (e) no other governmental authority shall have issued any order, decision, judgment, writ, injunction, decree, award or other determination which is then in effect that enjoins or otherwise prohibits consummation of the Merger, which order or determination would have a Parent Material Adverse Effect or a Company Material Adverse Effect after giving effect to consummate the transactions contemplated hereby Merger. If the Offer is terminated in accordance with the Merger Agreement and the Acceptance Time does not occur, then (a) the obligations of General Xxxxx and Purchaser to operate effect the Surviving Corporation after Merger shall be subject to additional conditions, which are substantially similar to the Effective Time Offer Conditions (other than the Minimum Tender Condition) and (b) the obligation of Xxxxx’s to effect the Merger shall be subject to the following additional conditions: (i) the representations and warranties of each of General Xxxxx and Purchaser set forth in the Merger Agreement shall be true and correct in all respects, without regard to any “materiality” or “Parent Material Adverse Effect” qualifications contained in them, as though made on and as of the closing date (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date), unless the failure or failures of representations and warranties to be true and correct in all respects would not Table of Contents have a Parent Material Adverse Effect, (ii) each of General Xxxxx and Purchaser shall have performed in all material respects as its obligations required to be performed by it was operated prior thereto (other than under the HSR Act Merger Agreement at or any other material foreign, federal or state antitrust, competition or fair trade lawbefore the closing date; and (iii) Xxxxx’s shall have been givenreceived a certificate, obtained or complied withsigned by an executive officer of General Xxxxx, certifying as applicable except where to the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension matters set forth in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
foregoing clauses (gi) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
and (h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredii).
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 5.1 Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company this Agreement shall have obtained been approved and adopted by the Company Stockholder Approval, requisite vote of the stockholders of CFAM and Parent shall have obtained the Parent Shareholder ApprovalBRHZ;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that governmental authority which prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired;
(d) , and any other governmental or regulatory notices, notices or approvals or other requirements necessary required with respect to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained either filed or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;received; and
(ed) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;, and all state securities laws or "blue sky" permits and authorizations necessary to issue Newco Shares in exchange for CFAM Shares and BRHZ Shares in the Merger shall have been obtained.
(e) BRHZ and CFAM shall have received from Price Waterhouse LLP, BRHZ's independent auditors, and Arthxx Xxxexxxx, XXP, CFAM's independent auditors, "comfort" letters, in form and substance satisfactory to each of them, the kind contemplated by the Statement of Auditing Standards with respect to Letters to Underwriters promulgated by the American Institute of Certified Public Accountants (the "AICPA Statement") with respect to the procedures undertaken by them through a date which is not earlier than five business days prior to the dates specified in (i) and (ii) below relating to the financial statements of BRHZ and CFAM, respectively, contained in the S-4 and the other matters contemplated by the AICPA statement and customarily included in comfort letters relating to transactions similar to the Merger, (i) dated immediately prior to the date of mailing of the Proxy Statement, and (ii) dated immediately prior to the Closing Date, a bringdown of the letter provided in subparagraph (i).
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange BRHZ shall have occurred;
(g) no general moratorium on commercial banking activities received the opinion of Price Waterhouse LLP, BRHZ's independent auditors, dated the Closing Date and addressed to BRHZ and available for use by either federal or state authorities CFAM and its representatives, to the effect that BRHZ is a poolable entity, and CFAM shall have been declared; and
received the opinion of Arthxx Xxxexxxx XXX, CFAM's independent auditors, dated the Closing Date and addressed to CFAM and available for use by BRHZ and its representatives, to the effect that the Merger will be treated as a "pooling of interests" in accordance with Generally Accepted Accounting Principles (h"GAAP") no material outbreak or escalation and all published rules, regulations and policies of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredSEC.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- MergerCONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT THE MERGER. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company this Agreement shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approvalstockholders of the Company;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation Business after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade lawAct) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parentapplicable;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;order and Parent shall have received all state securities laws or "blue sky" permits and authorizations necessary to issue shares of Parent Common Stock in exchange for Shares in the Merger; and
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange The Company shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities received from PricewaterhouseCoopers LLP and Parent shall have been declared; and
received from Xxxxxx Xxxxxxxx LLP, independent accountants for the Company and Parent, respectively, a copy of a letter addressed to the Company and Parent, respectively, each dated the Closing Date, in substance reasonably satisfactory to Parent and the Company (h) and which may contain customary qualifications and assumptions), to the effect that such independent accountants concur with the Company's and Parent's managements' conclusions that no material outbreak conditions exist related to the Company or escalation Parent, respectively, that would preclude Parent from accounting for the Merger as a "pooling of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredinterests."
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company this Agreement shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approvalstockholders of the Company;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state or foreign court or United States federal or state or foreign Governmental Entity that prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act and any foreign antitrust or any other material foreign, federal or state antitrust, competition or fair trade law similar laws shall have terminated or expired;
(d) any other governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation Company's business after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreignis presently conducted, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parentapplicable;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;, and Parent shall have received all state securities laws or "blue sky" permits and authorizations necessary to issue shares of Parent Common Stock in exchange for Shares in the Merger; and
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange Company shall have occurred;
received from Arthxx Xxxexxxx XXX, and Parent shall have received from Ernst & Young LLP, independent accountants for the Company and Parent, respectively, a copy of a letter addressed to the Company and Parent, respectively, each dated the Closing Date, in substance reasonably satisfactory to Parent and the Company (g) and which may contain customary qualifications and assumptions), to the effect that such independent accountants concur with the Company's and Parent's management's' conclusions that no general moratorium on commercial banking activities conditions exist related to the Company or Parent, respectively, that would preclude Parent from accounting for the Merger as a "pooling of interests"; provided, however, that this condition shall be deemed waived by either federal any party if any action taken by, or state authorities omitted to be taken by, such party or any of its employees or affiliates after the date hereof shall have been declared; and
(h) no material outbreak or escalation the proximate cause of hostilities, acts the inability of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in Parent to account for the United States shall have occurredMerger as a "pooling of interests."
Appears in 1 contract
Samples: Merger Agreement (Peoplesoft Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.17.1. Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. ---------------------------------------------------------- The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or waiver, where permissible, prior to the Effective Time Time, of the following conditions:
(a) if required by the PBCL, this Agreement shall have been approved by the requisite affirmative vote of the shareholders of the Company shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approvalin accordance with applicable law;
(b) no statute, rule, regulation, executive order, decree, ruling decree or injunction shall have been enacted, entered, promulgated promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins or restricts which is in effect and has the effect of prohibiting the consummation of the Merger;; and
(c) any the waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act or any other material foreignAct, federal or state antitrustif any, competition or fair trade law shall have terminated expired or expired;
been terminated, and (dx) any in the case of the Company's obligations, all other governmental or regulatory noticesconsents, orders and approvals or other requirements necessary to consummate legally required for the consummation of the Merger and the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been givenobtained and be in effect at the Effective Time, obtained or complied with, as applicable except where the failure to obtain any such consent would not reasonably be givenexpected to subject any officer, director, employee or shareholder of the Company to civil or criminal liability in respect of the failure to obtain such consent, and (y) in the case of Parent's and Purchaser's obligations, all other governmental consents, orders and approvals legally required for the consummation of the Merger and the transactions contemplated hereby (including merger control clearance by the German Federal Cartel Office under the GWB Act) shall have been obtained or complied with shall and be in effect at the Effective Time, except where the failure to obtain any such consent would not reasonably be expected to have a Material Adverse Effect on the Company or a Material Adverse Parent, or materially impede the operation or use of any of the Company's assets or business after the Closing.
Section 7.2. Conditions to Obligations of Parent and Purchaser to Effect on ----------------------------------------------------------- the Parent;
(e) Merger. The obligations of Parent and Purchaser to effect the S-4 Merger are ---------- further subject to the satisfaction or waiver pursuant to Section 1.1, prior to the Effective Time, of the condition that Purchaser shall have become effective under accepted for payment and paid for Securities tendered pursuant to the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredOffer.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section SECTION 5.1. Conditions to Each Party's Obligations to ----------------------------------------- Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to ----------------- effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company this Agreement shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approvalshareholders of the Company;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that governmental authority which prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expired, and any other governmental or regulatory notices or approvals required with respect to the transactions contemplated hereby shall have been either filed or received;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop orderorder and Parent shall have received all state securities laws or "blue sky" permits and authorizations necessary to issue shares of Parent Common Stock in exchange for the Shares in the Merger; and
(e) Parent shall have received a letter from E&Y stating that the Merger will be accounted for under GAAP as a "pooling-of- interests," and such opinion shall not have been withdrawn or modified in any material respect.
SECTION 5.2. Conditions to the Obligations of the Company. -------------------------------------------- The obligation of the Company to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the representations of Parent and Acquisition contained in this Agreement or in any other document delivered pursuant hereto shall be true and correct in all material respects at and as of the Effective Time with the same effect as if made at and as of the Effective Time, and at the Closing Parent and Acquisition shall have delivered to the Company a certificate to that effect;
(b) each of the obligations of Parent and Acquisition to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and at the Closing Parent and Acquisition shall have delivered to the Company a certificate to that effect;
(c) the shares of Parent Common Stock issuable to the Company shareholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been authorized for listing on the NYSE upon official notice of issuance;
(d) the opinion of Xxxxxxx Coie, counsel to the Company, addressed to the Company and its shareholders to the effect that (i) the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code; (ii) each of Parent, Acquisition, the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code; and (iii) no gain or loss will be recognized by a shareholder of the Company as a result of the Merger with respect to Shares converted into shares of Parent Common Stock (other than with respect to cash received in lieu of fractional shares of Parent Common Stock), dated the Closing Date and, if required in connection with the Proxy Statement, dated on or about the date that is two business days prior to the date the Proxy Statement is first mailed to shareholders of the Company shall have been delivered and such opinion shall not have been withdrawn or modified in any material respect;
(e) Parent shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on Parent; and
(f) there shall have been no events, changes or effects with respect to Parent or its subsidiaries having or which could reasonably be expected to have a Material Adverse Effect on Parent.
SECTION 5.3. Conditions to the Obligations of Parent and ------------------------------------------- Acquisition. The respective obligations of Parent and Acquisition to ----------- effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the representations of the Company contained in this Agreement or in any other document delivered pursuant hereto shall be true and correct in all material respects at and as of the Effective Time with the same effect as if made at and as of the Effective Time, and at the Closing the Company shall have delivered to Parent and Acquisition a certificate to that effect;
(b) each of the obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and at the Closing the Company shall have delivered to Parent and Acquisition a certificate to that effect;
(c) each Company Affiliate and each shareholder which is a party to the Shareholders Agreement shall have performed his or its respective obligations under the applicable Affiliate Letter and/or the Shareholders Agreement (if applicable), and Parent shall have received a certificate signed by each of them to such effect;
(d) the Company shall have obtained the consent or approval of each person whose consent or approval shall be required in order to permit the succession by the Surviving Corporation pursuant to the Merger to any obligation, right or interest of the Company or any subsidiary of the Company under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument, except for those for which failure to obtain such consents and approvals would not, individually or in the aggregate, have a Material Adverse Effect on the Company;
(e) there shall have been no events, changes or effects with respect to the Company or its subsidiaries having or which could reasonably be expected to have, a Material Adverse Effect on the Company;
(f) no suspension the Employment Agreement and the Services Agreement each shall be in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;full force and effect; and
(g) no general moratorium on commercial banking activities by either federal or state authorities the Non-Competition Agreements shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change be in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredfull force and effect.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. SECTION 6.01 Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or waiver, where permissible, prior to the proposed Effective Time Time, of the following conditions:
(a) the Company Stockholder Approvals shall have obtained been ob- tained as required by and in accordance with applicable law and the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder ApprovalRestated Certificate of Incorporation;
(b) no statute, rule, regulation, executive order, decree, ruling decree or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal governmental authority against the Parent, the Sub or state Governmental Entity the Company and be in effect that prohibits, restrains, enjoins prohibits or restricts the consummation of the MergerMerger or makes such consummation illegal (each party agreeing to use commercially reasonable efforts to have any such prohibition lifted);
(c) the conditions to each party's obligations to effect the GranCare Merger (other than the consummation of the Merger) shall have been satisfied or waived; provided, however, that neither the Company nor the Surviving Corporation may waive any such condition or modify or amend the terms of such merger agreement without the prior written consent of Parent; and
(d) the waiting period applicable to the consummation of the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have expired or been terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary and all filings required to consummate the transactions contemplated hereby and be made prior to operate the Surviving Corporation after the Effective Time with, and all consents, approvals, authorizations and permits required to be obtained prior to the Effective Time from, any Governmental Authority in all material respects as it was operated prior thereto (other than under connection with the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) consummation of the Merger shall have been givenmade or obtained (as the case may be), obtained or complied with, as applicable except where the failure to obtain such consents, approvals, authorizations and permits would not be given, obtained or complied with shall not have reasonably likely to result in a Material Adverse Effect on the Company or a Material Adverse Effect on to materially adversely affect the Parent;consummation of the Merger.
(e) the S-4 no action shall have become effective under the Securities Act been taken and shall not be the subject of any stop continuing, and no statute, rule, regulation, judgment, administrative interpretation, order or proceedings seeking a stop order;injunction shall have been enacted, promulgated, entered, enforced or deemed applicable to the Merger, which would make illegal or prohibit the consummation of the Merger; and
(f) no suspension the conditions set forth in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities Financing Commitments shall have been declaredsatisfied or waived (other than the conditions relating to the consummation of the Merger and the GranCare Merger);
SECTION 6.02 Additional Condition to the Company's Obligation to Effect the Merger. The obligation of the Company to effect the Merger is subject to the satisfaction or waiver by the Company, prior to the proposed Effective Time, of the following conditions:
(a) the Solvency Letter Condition; and
(hb) the representations and warranties of the Parent and the Sub set forth in Article III shall be true and correct in all material respects as of the Effective Time as though made on and as of that time, and the Parent and the Sub shall have performed in all material respects all covenants and agreements required to be performed by it under this Agreement at or prior to the Effective Time.
SECTION 6.03 Additional Conditions to the Parent's and the Sub's Obligations to Effect the Merger. The obligations of the Parent and the Sub to effect the Merger shall be subject to the satisfaction or waiver by the Parent and the Sub, prior to the proposed Effective Time, of the following conditions:
(a) no material outbreak action or escalation proceeding brought by any governmental, regulatory or administrative agency, authority or commission shall have been instituted and be pending that would be reasonably likely to result in any of hostilities, acts the consequences referred to in clauses (i) or (ii) of terrorism Section 6.03(a) above and there shall be no proceeding or other domestic action (including, without limitation, relating to health care, regulatory, environmental and pension matters) pending or international calamitythreatened against the Company, crisis GranCare or change their respective subsidiaries brought by any governmental, regulatory or administrative agency, authority or commission which is reasonably likely to have a Material Adverse Effect;
(b) during the 30 calendar day period ending on the date of the Closing, there shall not have occurred (i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in politicalthe over-the-counter market in the United States, financial (ii) the declaration of any banking moratorium or economic conditions any suspension of payments in respect of banks or any material limitation (whether or not mandatory) on the extension of credit by lending institutions in the United States, (iii) the commencement of a war, material armed hostilities or any other material event materially affecting international or national calamity involving the United States having a significant adverse effect on the functioning of the financial markets in the United States States, or (iv) in the case of any of the foregoing existing at the time of the execution of the Merger Agreement, a material acceleration or worsening thereof;
(c) since September 30, 1996, with respect to the Company, and December 31, 1996, with respect to GranCare, no change shall have occurred.occurred or have been threatened in the business, operations, prospects, properties or condition (financial or other) of the Company, GranCare or any of their respective subsidiaries that would have or would be reasonably likely to have a Material Adverse Effect provided, that the transactions contemplated by the Recapitalization Agreement and the Merger Agreement shall not be deemed to be such a materially adverse change;
(d) the representation and warranties of the Company set forth in Article IV shall be true and correct in all material respects as of the Effective Time as though made on and as of that time, and the Company shall have performed in all material respects all covenants and agreements required to be performed by them under this Agreement at or prior to the Effective Time. ARTICLE VII
Appears in 1 contract
Samples: Merger Agreement (New Grancare Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 8.1 Conditions to the Obligation of Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ shall be subject to the satisfaction fulfillment at or prior to the Effective Time of the following conditions:
(a) The Bargx Xxxreholders' Approval and the Company Bellwether Stockholders' Approval shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approval;been obtained.
(b) No action, suit or proceeding instituted by any Governmental Authority shall be pending and no statute, rulerule or regulation and no injunction, regulation, executive order, decree, ruling decree or injunction shall have been enacted, entered, promulgated or enforced by judgment of any United States federal or state court or United States federal Governmental Authority of competent jurisdiction shall be in effect, in each case which would prohibit, restrain, enjoin or state Governmental Entity that prohibits, restrains, enjoins or restricts restrict the consummation of the Merger;.
(c) any waiting period applicable The Registration Statement with respect to the issuance of all Bellwether Common Stock in the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated become effective in accordance with the provisions of the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceeding for such purpose shall be pending before or expired;threatened by the SEC.
(d) any governmental Each of Bargx xxx Bellwether shall have obtained such permits, authorizations, consents, or regulatory notices, approvals or other requirements necessary required to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;hereby.
(e) The shares of Bellwether Common Stock to be issued in the S-4 Merger and to be issued upon the exercise of options and warrants to purchase Bellwether Common Stock contemplated hereby shall have become effective under been approved for listing on the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq National Market System or the New York Stock Exchange shall have occurred;Exchange, subject to official notice of issuance.
(gf) no general moratorium on commercial banking activities The Second Amended and Restated Shareholders' Agreement dated May 14, 1999 by either federal or state authorities and among Bargx Xxxrgy Company, B. Carl Xxxxx, Xxn Wm. Reynxxxx, Xxergy Capital Investment Company PLC, EnCap Equity 1994 Limited Partnership, Bargx Xxxrgy Resources, Ltd., TJG Investments, Inc., BargoEnergy Company, Tim X. Xxxx, Xxomxx Xxxxxx, Xxmex X. Xxxxxx, XxrgoOperating Company, Inc., EnCap Energy Capital Fund III-B, L.P., BOCPEnergy Partners, L.P., EnCap Energy Capital Fund III, L.P., Kaynx Xxxxxxxx Xxxrgy Fund, L.P., BancAmerica Capital Investors SBIC I, L.P., Eos Partners, L.P., Eos Partners SBIC, L.P., Eos Partners SBIC II, L.P., and SGC Partners II LLC, as amended by the first amendment thereto, dated August 11, 1999, shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredterminated.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 6.1 Conditions Precedent to Each Party's Obligations to Effect the ---------------------------------------------------- Mergerof Parent and Merger Sub. The respective obligations of each party hereto Parent and Merger Sub to effect the Merger are ------ subject to the satisfaction of each condition precedent listed below, unless waived in writing by the Parent and Merger Sub:
(a) Each of the representations and warranties of Company shall be accurate and complete as of the Effective Time, as though made on and as of the Effective Time, without giving effect to any materiality qualifications or qualifications of similar import and without giving effect to any supplements to the Company Disclosure Letter, except where any inaccuracy or incompleteness of such representation or warranty, individually or in the aggregate, would not result in a Company Material Adverse Effect;
(b) Since the date of this Agreement, there shall not have occurred any change, condition, event or development that, individually or in the aggregate, has resulted in, or would reasonably be expected to result in, a Company Material Adverse Effect;
(c) The Company must have performed and complied with all of its covenants to be performed or complied with at or prior to the Effective Time of (singularly and in the following conditions:
(aaggregate) the Company shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approval;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable to the Merger under the HSR Act or any other in all material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expiredrespects;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate This Agreement and the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) Merger shall have been given, obtained or complied with, as applicable except where approved and adopted by the failure to be given, obtained or complied with shall not have a Material Adverse Effect on requisite vote of the Company Shareholders, if and to the extent required by the TBCA, the Company's articles of incorporation or a Material Adverse Effect on the ParentCompany bylaws;
(e) No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the S-4 consummation of the Merger shall have become effective be in effect; provided, however, neither Parent nor Merger Sub may invoke this condition unless both Parent and Merger Sub complied in all material respects with their obligations under the Securities Act Section 5.6 and shall not be the subject of any stop order or proceedings seeking a stop orderSection 5.7;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange The Company, Parent and Merger Sub shall have occurredreceived all consents, waivers, approvals, orders, authorizations or permits of Governmental Authorities necessary to consummate the Merger, including, without limitation, the HSR Act;
(g) no general moratorium holders of not more than 7.5% of the outstanding shares of Company Common Stock shall not have perfected such holders' right to dissent in accordance with the provisions of the TBCA or shall have withdrawn or lost such rights;
(h) Parent and Merger Sub have received or have available the proceeds of the Financing contemplated by the Commitment Letter or other financing which is on commercial banking activities terms substantially similar to or better than those set forth in the Commitment Letter, including but not limited to funds sufficient, in conjunction with the Equity Funds, to (i) purchase and pay the Common Stock Merger Consideration; (ii) pay all fees and expenses in connection with the Merger and the transactions contemplated hereby; (iii) redeem the Notes in accordance with their terms; (iv) repay the outstanding principal amount and accrued interest under the Second Amended and Restated Credit Agreement dated December 27, 2001 of the Company and (v) repay the liquidation preference and accrued dividends under the Company Preferred Stock;
(i) none of Xxxxxxx X. Brick, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx or Xxx X. Key (the "SENIOR MANAGERS") shall have failed to meet their funding obligations for any reason under their Subscription Agreement, except in the event that one and only one of the Senior Managers fail to meet their funding obligations by either federal reason of (i) their death or state authorities disability, (ii) a judicially imposed prohibition or restraint, or (iii) an event caused by a willful or intentional act by or on behalf of any Subscriber under the Subscription Agreements other than the Senior Managers;
(j) the vesting of all options and any other awards under the Company Equity Plans shall have been declaredaccelerated and all such options and awards shall have either been cancelled or shall otherwise be exercisable only for the Option Consideration and each of the Company Equity Plans shall have been terminated pursuant to its terms prior to the Effective Time; and
(hk) no material outbreak or escalation All obligations and liabilities of hostilitiesthe Company under the Second Amended and Restated Credit Agreement dated as of December 27, acts of terrorism or 2001 (other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States than unasserted indemnification claims) shall have occurredbeen fully satisfied and released.
Appears in 1 contract
Samples: Merger Agreement (Packaged Ice Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 7.1 Conditions to Each Party's Obligations the Companies’ Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto the other Company to effect the Merger are ------ transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by a writing signed by Global-Tech and Source Direct:
(a) This Agreement and the Company transactions contemplated hereby shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approval;shareholders of Source Direct in accordance with applicable law.
(b) no No preliminary or permanent injunction or other order by any federal, state, or foreign court of competent jurisdiction which prohibits the consummation of the Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, promulgated issued, promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;. Other than the filing of Articles of Merger with the Secretary of State for the State of Idaho, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any governmental entity (all of the foregoing, “Consents”) which are necessary for the consummation of the Merger, other than Consents the failure to obtain which would have no material adverse effect on the consummation of the Merger or on the Surviving Corporation, taken as a whole, shall have been filed, occurred, or been obtained.
(c) There shall not be any waiting period action taken, or any statute, rule, regulation, or order enacted, entered, enforced, or deemed applicable to the Merger under the HSR Act or Merger, by any other material foreign, federal or state antitrustgovernmental entity which imposes any condition or restriction upon the Surviving Corporation including, competition without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or fair trade law shall have terminated or expired;business benefits of the transactions contemplated by this Agreement as to render inadvisable the consummation of the Merger.
(d) any governmental Each Company shall have obtained the consent or regulatory notices, approvals approval of each person whose consent or other requirements necessary to consummate approval shall be required in connection with the transactions contemplated hereby hereby, under any loan or credit agreement, note, mortgage, indenture, lease, license, or other agreement or instrument, except those for which failure to obtain such consents and to operate approvals would not, individually or in the aggregate, have a material adverse effect on the Surviving Corporation after and its subsidiaries taken as a whole or upon the Effective Time in all material respects as it was operated prior thereto (other than under consummation of the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredtransactions contemplated hereby.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 6.01 Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or waiver, where permissible, prior to the proposed Effective Time Time, of the following conditions:
(a) Company stockholder approval of this Agreement and the Company Stock Issuance Proposal shall have been obtained as required by and in accordance with applicable law and the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder ApprovalCompany's Certificate of Incorporation;
(b) no statute, rule, regulation, executive order, decree, ruling decree or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal governmental authority against the Parent, the Sub or state Governmental Entity the Company and be in effect that prohibits, restrains, enjoins prohibits or restricts the consummation of the MergerMerger or makes such consummation illegal (each party agreeing to use commercially reasonable efforts to have any such prohibition lifted);
(c) the conditions to each party's obligations to effect the GranCare Merger (other than the consummation of the Merger) shall have been satisfied or waived; provided, however, that neither the Company nor the Surviving Corporation may waive any such condition or modify or amend the terms of such merger agreement without the prior written consent of Parent; and
(d) the waiting period applicable to the consummation of the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have expired or been terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary and all filings required to consummate the transactions contemplated hereby and be made prior to operate the Surviving Corporation after the Effective Time with, and all consents, approvals, authorizations and permits required to be obtained prior to the Effective Time from, any Governmental Authority in all material respects as it was operated prior thereto (other than under connection with the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) consummation of the Merger shall have been givenmade or obtained (as the case may be), obtained or complied with, as applicable except where the failure to obtain such consents, approvals, authorizations and permits would not be given, obtained or complied with shall not have reasonably likely to result in a Material Adverse Effect on the Company or to materially adversely affect the consummation of the Merger.
(e) no action shall have been taken and be continuing, and no statute, rule, regulation, judgment, administrative interpretation, order or injunction shall have been enacted, promulgated, entered, enforced or deemed applicable to the Merger, which would make illegal or prohibit the consummation of the Merger; and
(f) the conditions set forth in the Debt Commitment shall have been satisfied or waived (other than the conditions relating to the consummation of the Merger and the GranCare Merger);
Section 6.02 Additional Condition to the Company's Obligation to Effect the Merger. The obligation of the Company to effect the Merger is subject to the satisfaction or waiver by the Company, prior to the proposed Effective Time, of the following conditions:
(a) the Solvency Letter Condition; and
(b) the representations and warranties of the Parent and the Sub set forth in Article III shall be true and correct in all material respects as of the Effective Time as though made on and as of that time, and the Parent and the Sub shall have (i) executed and delivered the Stockholders Agreement, (ii) amended its Bylaws as contemplated by Section 5.15, and (iii) performed in all material respects all other covenants and agreements required to be performed by it under this Agreement at or prior to the Effective Time.
Section 6.03 Additional Conditions to the Parent's and the Sub's Obligations to Effect the Merger. The obligations of the Parent and the Sub to effect the Merger shall be subject to the satisfaction or waiver by the Parent and the Sub, prior to the proposed Effective Time, of the following conditions:
(a) no action or proceeding brought by any governmental, regulatory or administrative agency, authority or commission shall have been instituted and be pending that would be reasonably likely to result in any of the consequences referred to in clauses (b) or (e) of Section 6.01 above and there shall be no proceeding or other action (including, without limitation, relating to health care, regulatory, environmental and pension matters) pending or threatened against the Company, GranCare or their respective subsidiaries brought by any governmental, regulatory or administrative agency, authority or commission which is reasonably likely to have a Material Adverse Effect;
(b) during the 30 calendar day period ending on the date of the Closing, there shall not have occurred (i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market in the United States, (ii) the declaration of any banking moratorium or any suspension of payments in respect of banks or any material limitation (whether or not mandatory) on the extension of credit by lending institutions in the United States, (iii) the commencement of a war, material armed hostilities or any other material international or national calamity involving the United States having a significant adverse effect on the functioning of the financial markets in the United States, or (iv) in the case of any of the foregoing existing at the time of the execution of the Merger Agreement, a material acceleration or worsening thereof;
(c) since September 30, 1996, with respect to the Company, and December 31, 1996, with respect to GranCare, no change shall have occurred or have been threatened in the business, operations, prospects, properties or condition (financial or other) of the Company, GranCare or any of their respective subsidiaries that would have or would be reasonably likely to have a Material Adverse Effect provided, that the transactions contemplated by the Recapitalization Agreement and the Merger Agreement shall not be deemed to be such a materially adverse change;
(d) the representations and warranties of the Company set forth in Article IV shall be true and correct in all material respects as of the Effective Time as though made on and as of that time, and the ParentCompany shall have (i) executed and delivered the Stockholders Agreement, (ii) amended the Rights Agreement as contemplated by clause (b) of Section 5.09, and (iii) performed in all material respects all other covenants and agreements required to be performed by them under this Agreement at or prior to the Effective Time;
(e) the S-4 transactions contemplated by the Debt Commitment shall have become effective been consummated pursuant to definitive agreements in form and substance reflecting the terms of the Debt Commitment and otherwise reasonably satisfactory to Parent; any other refinancings, or amendments or consents relating to existing financing of the Company or GranCare made or obtained in connection with the Merger or the GranCare Merger shall be reasonably satisfactory to Parent; and all proceeds received by the Surviving Corporation on the Closing Date under or as a result of the Securities Act transactions contemplated by the Debt Commitment and as a result of the Merger shall not be used (or shall be usable) solely to consummate the subject transactions contemplated by this Agreement and the GranCare Merger Agreement, including payment of any stop order or proceedings seeking a stop orderfees and expenses thereof, the refinancing of existing indebtedness and to provide working capital to the Surviving Corporation and its subsidiaries;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange Company's stockholders shall have occurred;
approved the Amendment Proposal, including specifically the affirmative vote of not less than 662/3% of the outstanding Shares as of the record date (g) no general moratorium on commercial banking activities including as to the amendments to Articles Tenth and Eleventh of the Company's Certificate of Corporation, as in effect prior to such vote, the affirmative vote of not less than 662/3% of such shares excluding Shares owned by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation a "Related Person" as defined in such Company Certificate of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredIncorporation).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Living Centers of America Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 7.1 Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The ----------------------------------------------------------- respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the Company There shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder Approval;
(b) no not be in effect any statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state other order of a court or United States federal governmental or state Governmental Entity regulatory agency of competent jurisdiction directing that prohibitsthe transactions contemplated herein not be consummated; provided, restrainshowever, enjoins that prior to invoking this condition each party shall use all commercially reasonable efforts to have any such decree, ruling, injunction or restricts order vacated.
(b) All governmental consents, orders and approvals legally required for the consummation of the Merger;Merger and the transactions contemplated hereby shall have been obtained and be in effect at the Effective Time, and the waiting periods under the HSR Act shall have expired or been terminated.
(c) any waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law Company Shareholder Approval shall have terminated or expired;been obtained.
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) Parent Shareholder Approval shall have been givenobtained in accordance with applicable law, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Nasdaq and Parent;'s Articles of Incorporation.
(e) The shares of Parent Common Stock issuable in connection with the S-4 Merger shall have been approved for trading on the Nasdaq, subject to official notice of issuance.
(f) The Registration Statement shall have become effective under the Securities Act Act, and all post-effective amendments shall not be the subject of any have been declared effective or shall have been withdrawn; and no stop order or proceedings seeking a stop order;
(f) no suspension in suspending the trading of securities generally on Nasdaq or the New York Stock Exchange effectiveness thereof shall have occurred;been issued and no proceedings for that purpose shall have been initiated or, to the knowledge of the parties, threatened by the SEC.
(g) no general moratorium on commercial banking activities by either federal or state authorities There shall have been declared; andobtained any and all material permits, approvals and consents of securities or "blue sky" authorities of any jurisdiction that are necessary so that the consummation of the Merger and the transactions contemplated thereby will be in compliance with applicable laws, the failure to comply with which would have a Parent Material Adverse Effect.
(h) no material outbreak The Company and Parent shall have received the opinion of Hunton & Xxxxxxxx, counsel to Parent, dated the Closing Date and in form and substance reasonably satisfactory to each of the Company and Parent, to the effect that, for federal income tax purposes: (i) the Merger will be a reorganization within the meaning of Section 368(a) of the Code; (ii) neither the Company, Parent nor Newco will recognize any gain or escalation loss upon consummation of hostilities, acts the Merger; (iii) a Company shareholder will not recognize any gain or loss upon the exchange of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets shares of Company Shares solely for shares of Parent Stock in the United States Merger, and (iv) a Company shareholder who receives cash and shares of Parent stock in exchange for shares of Company Shares in the Merger will recognize any gain realized (including any gain treated as a dividend) up to the amount of cash received, but will not recognize any loss. Such opinion may be conditioned upon the receipt of representations of the Company, Parent and Newco, all in form and substance reasonably satisfactory to such counsel, and reasonable assumptions set forth therein.
7.2 Conditions to the Company's Obligations to Effect the Merger. The ------------------------------------------------------------ obligations of the Company to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following additional conditions:
(a) The representations and warranties of Parent and Newco contained in this Agreement shall be true and correct (in all material respects, in the case of representations and warranties not already qualified as to materiality by their terms) at and as of the Effective Time as though made on and as of such date (except (i) for changes specifically permitted by this Agreement and (ii) that those representations and warranties which address matters only as of a particular date shall remain true and correct as of such date), and the Company shall have received a certificate of the President or a Vice President of Parent to the foregoing effect.
(b) Parent and Newco shall have performed and complied with in all material respects their obligations under this Agreement to be performed or complied with on or prior to the Effective Time, and the Company shall have received a certificate of the President or a Vice President of Parent to the foregoing effect.
(c) No Distribution Date (as defined in the Parent Rights Agreement) shall have arrived.
(d) There shall have been no Parent Material Adverse Effect since the date of this Agreement.
7.3 Conditions to Parent's and Newco's Obligations to Effect the Merger. ------------------------------------------------------------------- The obligations of Parent and Newco to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following additional conditions:
(a) The representations and warranties of the Company contained in this Agreement shall be true and correct (in all material respects, in the case of representations and warranties not already qualified as to materiality by their terms) at and as of the Effective Time as though made on and as of such date (except (i) for changes specifically permitted by this Agreement and (ii) that those representations and warranties which address matters only as of a particular date shall remain true and correct as of such date), and Parent shall have received a certificate of the President or a Vice President of the Company to the foregoing effect.
(b) The Company shall have performed and complied with in all material respects its obligations under this Agreement to be performed or complied with on or prior to the Effective Time, and Parent shall have received a certificate of the President or a Vice President of the Company to the foregoing effect.
(c) No Distribution Date (as defined in the Company Rights Agreement) shall have occurred.
(d) All of the Company's Preferred Stock shall have been converted into shares of the Company's Common Stock.
(e) The Company shall have delivered to Parent agreements in the form of Exhibit C ("Company Affiliate Agreements") executed by each person who could --------- reasonably be deemed to be an "affiliate" of the Company (as that term is used in Rule 145 of the Securities Act).
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 7.1 Conditions to Each Party's Obligations the Companies' Obligation to Effect the ---------------------------------------------------- Merger/Reorganization Representations. The respective obligations of each party hereto the Companies to effect the Merger are ------ transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by a writing signed by HBOA and LSC:
(a) This Agreement and the Company transactions contemplated hereby shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approval;shareholders of LSC in accordance with applicable law.
(b) no No preliminary or permanent injunction or other order by any federal, state, or foreign court of competent jurisdiction which prohibits the consummation of any Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, promulgated issued, promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;.
(c) Other than the filing of Articles of Merger with the Department of State for the State of Florida, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any waiting period applicable to governmental entity (all of the Merger under foregoing, "Consents") which are reasonably necessary for the HSR Act or any other material foreignconsummation of the Merger, federal or state antitrust, competition or fair trade law shall have terminated been filed, occurred, or expired;been obtained (all such permits, approvals, filings, and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect.
(d) any governmental All state securities or regulatory notices, approvals or blue sky permits and other requirements authorizations necessary to issue the HBOA Shares (including satisfactory evidence of the nature of the LSC Shareholders) in exchange for the Shares of LSC and to consummate the Merger shall have been received.
(e) There shall not be any action taken, or any statute, rule, regulation, or order enacted, entered, enforced, or deemed applicable to any Merger, by any federal or state governmental entity which, in connection with the grant of a Requisite Regulatory Approval, imposes any condition or restriction upon any Surviving Corporation or its subsidiaries (or, in the ease of any disposition of assets required in connection with such Requisite Regulatory Approval, upon any Company or its subsidiaries), including, without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or business benefits of the transactions contemplated hereby and by this Agreement as to operate render inadvisable the Surviving Corporation after consummation of the Effective Time Merger.
(f) The other Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of the other Company contained in this Agreement shall be true and at and as it was operated prior thereto (other than under of the HSR Act or any other material foreignEffective Time as if made at and as of such time, federal or state antitrustexcept as contemplated by this Agreement, competition or fair trade law) and each Company shall have been givenreceived a certificate of the Chairman of the Board, obtained the President, or complied with, an Executive Vice President of the other Company as applicable except where to the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject satisfaction of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;this condition.
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; andPrior to the Effective Time, HBOA will be in control of Acquisition Sub within the meaning of Section 368(c) of the Code.
(h) HBOA and Acquisition Sub have no material outbreak present plan or escalation intention to reacquire any of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets the HBOA Shares issued in the United States shall have occurredmerger, other than as a result of the terms and conditions of this Agreement.
(i) No stock of Acquisition Sub has been distributed to LSC or to the LSC Shareholders pursuant to this Agreement.
(j) HBOA has no present plans or intention to liquidate the Surviving Corporation or to merge the Surviving Corporation with and into another corporation, to sell or otherwise dispose of the stock of the Surviving Corporation or to cause the Surviving Corporation to sell or otherwise dispose of its assets except for dispositions made in the ordinary course of a business.
(k) HBOA and Acquisition Sub are participating in the Merger for good and valid business reasons and not for tax purposes.
(l) Following the Effective Time, the Surviving Corporation has no present plan or intent to issue additional shares of its stock that would result in HBOA losing control of Surviving Corporation within the meaning of Section 368(c)(1) of the Code, and will not do so voluntarily prior to one year following the Effective Time.
(m) Following the Effective Time, HBOA and Surviving Corporation intend to continue substantially all the historic business of LSC.
Appears in 1 contract
Samples: Merger Agreement (Hboa Holdings Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- MergerSECTION 7.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT THE MERGER. The respective obligations of each party hereto to effect consummate the Merger are ------ subject to the satisfaction fulfillment at or prior to the Effective Time of each of the following conditions, any or all of which may be waived in whole or in part by the party being benefited thereby, to the extent permitted by applicable Law:
(a) the Company shall have obtained the Company Stockholder Approval, and Parent shall have obtained the Parent Shareholder ApprovalRequisite Vote;
(b) no statute, rule, regulation, executive order, decree, ruling or injunction there shall have been enacted, entered, promulgated or enforced by not be in effect any United States federal or state court or United States federal or state Law of any Governmental Entity that prohibitsof competent jurisdiction, restrainsrestraining, enjoins enjoining or restricts the otherwise preventing consummation of the Merger;
(ci) any applicable waiting period applicable to the Merger under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have expired or been terminated, (ii) any relevant statutory, regulatory or other governmental waiting periods or approvals, whether domestic, foreign or supranational, the failure of which to have expired or been terminated or expired;
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) shall have been given, be obtained or complied with, as applicable except where the failure to be givenin full force and effect, obtained would, either (A) individually or complied with shall not in the aggregate, have a Material Adverse Effect on the Company or the Surviving Corporation or (B) result in any violation of Law, shall have expired or been terminated or been obtained and be in full force and effect, as the case may be, or (iii) in the event that the Merger constitutes a Material Adverse Effect on concentration with a Community dimension within the Parentscope of the ECMR, the European Commission shall not have indicated prior to Closing Date that it intends to initiate proceedings under the ECMR in respect of the Merger nor refer the transactions or any matters arising therefrom to the competent authority of a Member State under Article 9(1) of the ECMR;
(ed) any registration statement (including any necessary supplement or amendment) with respect to the S-4 shall have become effective under ProLogis Common Stock owned by the Securities Act Company and shall not be the subject of any stop order or proceedings seeking filed pursuant to this agreement (a stop order;
(f"PROLOGIS REGISTRATION STATEMENT") no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) declared effective by the SEC, no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States stop order shall have occurredbeen issued with respect to such ProLogis Registration Statement and such ProLogis Registration Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. 8.1 Conditions to Each Party's Obligations the Companies' Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto all Companies to effect the Merger are ------ transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by a writing signed by NAC, Acquisition Sub, and New Leaf:
(a) This Agreement and the Company transactions contemplated hereby shall have obtained been approved and adopted by the Company Stockholder Approval, shareholders of each of the Companies to the extent required and Parent shall have obtained the Parent Shareholder Approval;in accordance with applicable law and each Company's Articles of Incorporation and Bylaws.
(b) no No preliminary or permanent injunction or other order by any federal, state, or foreign court of competent jurisdiction which prohibits the consummation of the Merger shall have been issued and remain in effect as of the Closing. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, promulgated issued, promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;. Other than the filing of the Certificate of Merger with the Secretary of State for the State of Georgia, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any governmental entity (all of the foregoing, "Consents") which are necessary for the consummation of the Merger, other than Consents the failure to obtain which would have no material adverse effect on the consummation of the Merger or on the Surviving Corporation and its subsidiaries, taken as a whole, shall have been filed, occurred, or been obtained (all such permits, approvals, filings, and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect. All state securities or blue sky permits and other authorizations necessary to issue the NAC Shares and NAC Promissory Notes in exchange for the New Leaf Shares and to consummate the Merger shall have been received.
(c) There shall not be any waiting period action taken, or any statute, rule, regulation, or order enacted, entered, enforced, or deemed applicable to the Merger under the HSR Act or Merger, by any other material foreign, federal or state antitrustgovernmental entity which, competition in connection with the grant of a Requisite Regulatory Approval, imposes any condition or fair trade law shall have terminated restriction upon any Surviving Corporation, including, without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or expired;business benefits of the transactions contemplated by this Agreement as to render inadvisable the consummation of the Merger.
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate Each of the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time Companies shall have performed in all material respects its obligations under this Agreement required to be performed by them at or prior to the Effective Time and the representations and warranties of each of the Companies contained in this Agreement shall be true and correct in all material respects at and as it was operated prior thereto (other than under of the HSR Act or any other material foreignEffective Time as if made at and as of such time, federal or state antitrustexcept as contemplated by this Agreement, competition or fair trade law) and each Company shall have been givenreceived a certificate of the Chairman of the Board, obtained the President, or complied with, an Executive Vice President of the other Company as applicable except where to the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;satisfaction of this condition.
(e) the S-4 Each Company shall have become effective obtained the consent or approval of each person and entity whose consent or approval shall be required in connection with the transactions contemplated hereby, under the Securities Act any loan or credit agreement, note, mortgage, indenture, lease, license, or other agreement or instrument, except those for which failure to obtain such consents and shall not be the subject of any stop order approvals would not, individually or proceedings seeking a stop order;
(f) no suspension in the trading aggregate, have a material adverse effect on the Surviving Corporation and its subsidiaries taken as a whole or upon the consummation of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredtransactions contemplated hereby.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.11. Conditions to Each Party's Obligations Obligation to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ shall be subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) any waiting period applicable to the Company consummation of the Merger under the HSR Act shall have obtained the Company Stockholder Approvalexpired or been terminated, and Parent no action shall have obtained been instituted by the Parent Shareholder ApprovalDepartment of Justice or Federal Trade Commission challenging or seeking to enjoin the consummation of this transaction, which action shall have not been withdrawn or terminated;
(b) no statute, rule, regulation, executive order, decree, ruling or preliminary or permanent injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state court or United States federal or state Governmental Entity that governmental authority having jurisdiction which prohibits, restrains, enjoins or restricts the consummation of the Merger;
(c) any waiting period applicable each of the Company and American General Corporation shall have made such filings, and obtained such permits, authorizations, consents, or approvals, required by Governmental Requirements to consummate the transactions contemplated hereby, and the appropriate forms shall have been executed, filed and approved as required by the corporate and insurance laws and regulations of the states of New York and such other states as may have jurisdiction over the transactions contemplated by this Agreement pursuant to insurance holding company or other insurance laws or regulations; provided, however, that such permits, authorizations, consents and approvals may be subject to (i) conditions customarily imposed by insurance regulatory authorities in transactions of the type contemplated by this Agreement or (ii) other conditions that would not reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of American General Corporation and its Subsidiaries taken as a whole (after giving effect to the Merger under consummation of the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law shall have terminated or expiredMerger);
(d) any governmental or regulatory notices, approvals or other requirements necessary to consummate this Agreement and the transactions contemplated hereby and to operate the Surviving Corporation after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreign, federal or state antitrust, competition or fair trade law) Merger shall have been given, obtained or complied with, as applicable except where adopted and approved by the failure to be given, obtained or complied with shall not have a Material Adverse Effect on requisite vote of the holders of the Company or a Material Adverse Effect on Common Stock in accordance with the Parentapplicable provisions of the NYBCL;
(e) the S-4 shareholders of American General Corporation shall have voted to approve the issuance of Shares of American General Corporation Common Stock as Merger Consideration;
(f) the Registration Statement shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;; and
(g) no general moratorium on commercial banking activities by either federal or state authorities the shares of American General Corporation Common Stock issuable to the Company's shareholders pursuant to this Agreement shall have been declaredauthorized for listing on the NYSE upon official notice thereof.
Section 2. Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of the following additional conditions:
(a) each of American General Corporation and Merger Sub shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time; the representations and warranties of American General Corporation and Merger Sub contained in this Agreement shall be true and correct in all respects as of the date of this Agreement and at and as of the Effective Time as if made at and as of such time (except to the extent such representations and warranties specifically relate to an earlier date, in which case as of such earlier date) except as contemplated by this Agreement and except to the extent that the failure of such representations and warranties to be true and correct would not, in the aggregate, be reasonably likely to result in a American General Corporation Material Adverse Effect; and the Company shall have received a certificate of the Chairman of the Board, the President, an Executive Vice President, a Senior Vice President or the Chief Financial Officer of American General Corporation as to the satisfaction of this condition;
(b) the Company shall have received an opinion from Debevoise & Plimxxxx, xxecial counsel to the Company, dated the Effective Time, to the effect that, on the basis of certain facts, representations and assumptions set forth in such opinion which are consistent with the stated facts existing at the Effective Time, the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, and that American General Corporation, Merger Sub and the Company will each be a party to that reorganization within the meaning of Section 368(b) of the Code. In rendering the opinion described in the preceding sentence, such counsel may require and rely upon representations contained in certificates of officers of American General Corporation, Merger Sub and the Company and their respective subsidiaries received pursuant to Section 7.12 hereof; and
(hc) no material outbreak the audited GAAP financial statements of American General Corporation for the fiscal year ended December 31, 1996 shall not reflect any event, change or escalation of hostilitieseffect having, acts of terrorism or other domestic or international calamitywhich would be reasonably likely to have, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredaggregate, a American General Corporation Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Uslife Corp)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger8.1 CONDITIONS TO THE COMPANIES' OBLIGATION TO EFFECT THE MERGER. The respective obligations of each party hereto all Companies to effect the Merger are ------ transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any one of which may be waived by a writing signed by VDAT and MOD:
(a) This Agreement and the Company transactions contemplated hereby shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approval;shareholders of MOD in accordance with applicable law.
(b) no No preliminary or permanent injunction or other order by any federal, state, or foreign court of competent jurisdiction which prohibits the consummation of any Merger shall have been issued and remain in effect. No statute, rule, regulation, executive order, stay, decree, ruling or injunction judgment shall have been enacted, entered, promulgated issued, promulgated, or enforced by any United States federal or state court or United States federal or state Governmental Entity that prohibits, restrains, enjoins governmental authority which prohibits or restricts the consummation of the Merger;.
(c) Other than the filing of Articles or Certificate of Merger with the Department of State for the State of Florida and Delaware, all authorizations, consents, orders or approvals of, or declarations or filings with, and all expirations of waiting periods imposed by, any waiting period applicable to governmental entity (all of the Merger under foregoing, "Consents") which are reasonably necessary for the HSR Act or any other material foreignconsummation of the Merger, federal or state antitrust, competition or fair trade law shall have terminated been filed, occurred, or expired;been obtained (all such permits, approvals, filings, and consents and the lapse of all such waiting periods being referred to as the "Requisite Regulatory Approvals") and all such Requisite Regulatory Approvals shall be in full force and effect.
(d) any governmental All state securities or regulatory notices, approvals or blue sky permits and other requirements authorizations necessary to issue the VDAT Shares (including satisfactory evidence of the nature of the MOD Shareholders) in exchange for the Shares of MOD and to consummate the Merger shall have been received.
(e) There shall not be any action taken, or any statute, rule, regulation, or order enacted, entered, enforced, or deemed applicable to any Merger, by any federal or state governmental entity which, in connection with the grant of a Requisite Regulatory Approval, imposes any condition or restriction upon any Surviving Corporation or its subsidiaries (or, in the ease of any disposition of assets required in connection with such Requisite Regulatory Approval, upon any Company or its subsidiaries), including, without limitation, requirements relating to the disposition of assets, which in any such case would so materially adversely impact the economic or business benefits of the transactions contemplated hereby and by this Agreement as to operate render inadvisable the Surviving Corporation after consummation of the Effective Time Merger.
(f) The other Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of the other Company contained in this Agreement shall be true and at and as it was operated prior thereto (other than under of the HSR Act or any other material foreignEffective Time as if made at and as of such time, federal or state antitrustexcept as contemplated by this Agreement, competition or fair trade law) and each Company shall have been givenreceived a certificate of the Chairman of the Board, obtained the President, or complied with, an Executive Vice President of the other Company as applicable except where to the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
(e) the S-4 shall have become effective under the Securities Act and shall not be the subject satisfaction of any stop order or proceedings seeking a stop order;
(f) no suspension in the trading of securities generally on Nasdaq or the New York Stock Exchange shall have occurred;
(g) no general moratorium on commercial banking activities by either federal or state authorities shall have been declared; and
(h) no material outbreak or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredthis condition.
Appears in 1 contract
Samples: Merger Agreement (Visual Data Corp)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 5.1. Conditions to Each Party's Obligations to Effect the ---------------------------------------------------- Merger. The respective obligations of each party hereto to effect the Merger are ------ subject to the satisfaction at or prior to the Effective Time of the following conditions:
: (a) the Company this Agreement shall have obtained been approved and adopted by the Company Stockholder Approval, and Parent shall have obtained requisite vote of the Parent Shareholder Approval;
stockholders of the Company; (b) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state or foreign court or United States federal or state or foreign Governmental Entity that prohibits, restrains, enjoins or restricts the consummation of the Merger;
; (c) any waiting period applicable to the Merger under the HSR Act and any foreign antitrust or any other material foreign, federal or state antitrust, competition or fair trade law similar laws shall have terminated or expired;
; (d) any other governmental or regulatory notices, approvals or other requirements necessary to consummate the transactions contemplated hereby and to operate the Surviving Corporation Company's business after the Effective Time in all material respects as it was operated prior thereto (other than under the HSR Act or any other material foreignis presently conducted, federal or state antitrust, competition or fair trade law) shall have been given, obtained or complied with, as applicable except where the failure to be given, obtained or complied with shall not have a Material Adverse Effect on the Company or a Material Adverse Effect on the Parent;
applicable; (e) the S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking a stop order;
, and Parent shall have received all state securities laws or "blue sky" permits and authorizations necessary to issue shares of Parent Common Stock in exchange for Shares in the Merger; and (f) the Company shall have received from Xxxxxx Xxxxxxxx LLP, and Parent shall have received from Ernst & Young LLP, independent accountants for the Company and Parent, respectively, a copy of a letter addressed to the Company and Parent, respectively, each dated the Closing Date, in substance reasonably satisfactory to Parent and the Company (and which may contain customary qualifications and assumptions), to the effect that such independent accountants concur with the Company's and Parent's management's' conclusions that no suspension conditions exist related to the Company or Parent, respectively, that would preclude Parent from accounting for the Merger as a "pooling of interests"; provided, however, that this condition shall be deemed waived by any party if any action taken by, or omitted to be taken by, such party or any of its employees or affiliates after the date hereof shall have been the proximate cause of the inability of Parent to account for the Merger as a "pooling of interests." Section 5.2. Conditions to the Obligations of the Company. The obligation of the Company to effect the Merger is subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) the representations and warranties of Parent and Acquisition contained in this Agreement (other than those contained in Section 3.10) shall be true and correct as of the date hereof (except to the extent that the aggregate of all breaches thereof would not have a Material Adverse Effect on Parent) and as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date, and in any event, subject to the foregoing Material Adverse Effect qualification) and the representations and warranties of Parent and Acquisition contained in Section 3.10 shall be true and correct in all respects at and as of the Effective Time, and, at the Closing, Parent and Acquisition shall have delivered to the Company a certificate to that effect, executed by two (2) executive officers of Parent and Acquisition; (b) each of the covenants and obligations of Parent and Acquisition to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time, and, at the Closing, Parent and Acquisition shall have delivered to the Company a certificate to that effect, executed by two (2) executive officers of Parent and Acquisition; provided, however, that in connection with the compliance by Parent or Acquisition with any Applicable Law (including the HSR Act) or obtaining the consent or approval of any Governmental Entity whose consent or approval may be required to consummate the transactions contemplated by this Agreement, Parent shall not be (i) required, or be construed to be required, to sell or divest any material assets or business or to restrict in any material respect any business operations in order to obtain the consent or successful termination of any review of any such Governmental Entity regarding the transactions contemplated hereby or (ii) prohibited from owning, and no material limitation shall be imposed on Parent's ownership of, any material portion of the Company's business or assets; (c) the shares of Parent Common Stock issuable to the Company's stockholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been approved for quotation on the Nasdaq National Market, upon official notice of issuance; (d) the Company shall have received the opinion of tax counsel to the Company or tax counsel to Parent to the effect that (i) the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on the representations set forth in Exhibits B-1 and B-2 and such other representations as such counsel reasonably deems appropriate and such opinion shall not have been withdrawn or modified in any material respect; and (e) there shall have been no events, changes or effects, individually or in the trading aggregate, with respect to Parent or its subsidiaries having, or that would reasonably be expected to have, a Material Adverse Effect on Parent. Section 5.3. Conditions to the Obligations of securities generally Parent and Acquisition. The respective obligations of Parent and Acquisition to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) the representations and warranties of the Company contained in this Agreement (other than those contained in Section 2.27) shall be true and correct as of the date hereof (except to the extent that the aggregate of all breaches thereof would not have a Material Adverse Effect on Nasdaq or the New York Stock Exchange Company) and as of the Effective Time with the same effect as if made at and as of the Effective Time (except to the extent such representations specifically relate to an earlier date, in which case such representations shall be true and correct as of such earlier date, and in any event, subject to the foregoing Material Adverse Effect qualification) and the representations and warranties of the Company contained in Section 2.27 shall be true and correct in all respects at and as of the Effective Time, and, at the Closing, the Company shall have occurred;
delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (b) each of the covenants and obligations of the Company to be performed at or before the Effective Time pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Effective Time and, at the Closing, the Company shall have delivered to Parent and Acquisition a certificate to that effect, executed by two (2) executive officers of the Company; (c) Parent shall have received from each Affiliate of the Company referred to in Sections 2.21 and 4.13(a) an executed copy of the letter attached hereto as Exhibit A-1; (d) there shall have been no events, changes or effects, individually or in the aggregate, with respect to the Company or its subsidiaries having, or that would reasonably be expected to have, a Material Adverse Effect on the Company; (e) the shares of Parent Common Stock issuable to the Company's stockholders pursuant to this Agreement and such other shares required to be reserved for issuance in connection with the Merger shall have been approved for quotation on the Nasdaq National Market, upon official notice of issuance; (f) Parent shall have received the opinion of tax counsel to Parent or tax counsel to the Company to the effect that (i) the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and (ii) each of Parent, Acquisition and the Company will be a party to the reorganization within the meaning of Section 368(b) of the Code, which opinion may rely on the representations set forth in Exhibits B-1 and B-2 and such other representations as such counsel reasonably deems appropriate, and such opinion shall not have been withdrawn or modified in any material respect; and (g) no general moratorium on commercial banking activities by either federal or state authorities the Opinion of the Company Financial Advisor shall not have been declared; and
(h) no material outbreak withdrawn, revoked or escalation of hostilities, acts of terrorism or other domestic or international calamity, crisis or change in political, financial or economic conditions or other material event materially affecting financial markets in the United States shall have occurredamended.
Appears in 1 contract
Samples: Merger Agreement (Vantive Corp)
