CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King and the Sky King Shareholders. The obligations of Sky King and the Sky King Shareholders to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions: (a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999. (b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A). (c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement. (d) The representations and warranties of Acquiror and the Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time. (e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement. (f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA. (g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing). (h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code. (i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii). (j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent. (k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing. (l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror. (m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured. (n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Moran Frederick W), Agreement and Plan of Merger (Moran Frederick A)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Section 6.1. Conditions to Each Party's Obligations of Sky King and to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and the Sky King Shareholders each party hereto to consummate effect the Merger and the other transactions contemplated to be consummated by it at the Closing hereby are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) Effective Time of each of the following conditions:
(a) Acquiror this Agreement and the transactions contemplated hereby shall have sold, transferred or otherwise disposed of all of its present assets been approved and shall as adopted by the requisite vote of the Closing SSI Shareholders, and the SSI Shareholders shall have assets consisting taken all other corporate actions necessary to authorize the execution, delivery and performance of at least: (i) $1 million in cash or other liquid assetsthis Agreement, the consummation of the Merger and the transactions contemplated hereby and thereby; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.and
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, ruling or injunction or restraining order shall have been enacted, entered, promulgated or enforced by any United States federal or state court of competent jurisdiction or United States federal or state governmental authority entity that prohibits prohibits, restrains, enjoins or restricts the consummation of the Merger.
Section 6.2. Conditions to the Obligations of SSI. The obligations of SSI to effect the Merger and the other transactions contemplated hereby are subject to the satisfaction at or prior to the Closing Date of each of the following conditions (any one or more of which may be waived by SSI in writing):
(a) the representations and warranties of HOLL and Acquisition Sub contained in this Agreement shall be true axx xorrect on and as of the Closing Date with the same effect as if made on and as of the Closing Date (except to the extent such representations specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date) unless the failure of such representations and warranties to be so true and correct would not have a Material Adverse Effect on HOLL or materially interfere with the transactions contemplated herexx, and, at the Closing, HOLL and Acquisition Sub shall have delivered to SSI a certificate tx xxat effect, executed on behalf of HOLL by one or more executive officers of each of HOLL and Acquisitixx Xub;
(b) each of the covenants and obligations of HOLL and Acquisition Sub to be performed on or before the Closing Daxx xursuant to this Agreement shall have been duly performed in all material respects on or before the Closing Date and, at the Closing, HOLL and Acquisition Sub shall have delivered to SSI a certificate tx xxat effect, executed on behalf of HOLL by one or more executive officers of each of HOLL and Acquisitixx Xub;
(c) HOLL shall have delixxxxd to CMPi:
(i) the CMPx Xxte Repayment Agreement and the CMPi Non-Competition Agreement, in substantially the forms attached hereto as Exhibit C-1 and Exhibit C-2, respectively, executed by HOLL effective as of the Closing Date;
(ii) thx Xxtter of Credit, in the form attached hereto as Exhibit D, executed by HOLL and the Bank effective as of the Closing Date; and
(iii) immediately available funds in the amount of $769,000 and certificates representing the HOLL Shares, as payment in full on the SSI Note.
(x) XOLL and the other parties called for therein (other than SSI and thx Xxareholder Agent) shall have executed and delivered the Indemnity Escrow Agreement, effective as of the Closing Date; and a deposit of $750,000 as called for therein shall have been delivered to the Escrow Agent.
Section 6.3. Conditions to the Obligations of HOLL and Acquisition Sub. The respective obligations of HOLL and Acqxxxxtion Sub to effect the Merger and the other transactxxxx contemplated hereby are subject to the satisfaction or waiver at or prior to the Closing Date of each of the following conditions (any one or more of which may be waived by HOLL in writing, except that the condition specified in subsection (x) xay not be waived without the consent of SSI):
(a) the representations and warranties of SSI contained in this Agreement shall be true and correct on and as of the Closing Date with the same effect as if made on and as of the Closing Date (except to the extent such representations specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), unless the failure of such representations and warranties to be so true and correct would not have a Material Adverse Effect on SSI, and, at the Closing, SSI shall have delivered to HOLL and Acquisition Sub a certificate to that effect, executed on bxxxxf of SSI by its CEO;
(b) each of the covenants and obligations of SSI to be performed on or before the Closing Date pursuant to this Agreement shall have been duly performed in all material respects on or before the Closing Date and, at the Closing, SSI shall have delivered to HOLL and Acquisition Sub a certificate to that effect, executed on bxxxxf of SSI by its CEO;
(c) there shall not have occurred a Material Adverse Effect with respect to SSI;
(d) SSI shall have obtained the consents set forth in Item 2.5 of the Disclosure Letter;
(e) HOLL shall have received the CMPi Note Repayment Agreement and the CXXx Non-Competition Agreement, in substantially the forms attached hereto as Exhibit C-1 and Exhibit C-2, respectively, executed by CMPi and SSI effective as of the Closing Date;
(f) HOLL shall have received for cancellation the SSI Note from CMPi;
(g) HOLL shall have received the resignations, effective as of the Closixx, of each director and officer of SSI and each of its Subsidiaries whom HOLL shall have specified in writing no later than 3 days prior to txx Xlosing;
(h) SSI, the Shareholder Agent and the other parties called for therein (other than HOLL) shall have executed and delivered the Indemnity Escrow Agreemexx, each effective as of the Closing Date;
(i) HOLL shall have received satisfactory evidence that SSI has given to xxxders of its Common Stock, Preferred Stock and SSI Stock Options 20 days' notice of the Merger as is required by the terms of SSI's Amended and Restated Certificate of Incorporation and Bylaws, or the related transactionsSSI Plans, respectively, and the longest of the notice periods required by the Amended and Restated Certificate of Incorporations, Bylaws, or SSI Plans shall have expired, or in lieu thereof with respect to any such required notice, HOLL shall have received satisfactory evidence that such notice has xxxx waived in writing;
(j) HOLL shall have received an opinion from Troy & Gould Professional Cxxxxration to the effect that this Agreemxxx and xxx Merger have been duly authorized by all requisite corporate action of the directors and shareholders of SSI;
(k) HOLL shall have received satisfactory evidence that each of the Stocxxxxder Agreements have been terminated, and that SSI has no further obligations under any such agreements; and
(l) HOLL shall have received an estoppel certificate from Wilshire Courtxxxx L.L.C. in substantially the form of Exhibit E attached hereto;
(m) HOLL shall have received from SSI the Estimated Closing Working Capixxx and the Estimated Closing Cash Balance; and the total of the Cash Makeup and the Working Capital Makeup (as calculated in good faith by HOLL), does not exceed the total of the Cash Makeup and the Working Xxxxtal Makeup (as calculated in good faith by SSI), by more than $500,000;
(n) HOLL shall have received a schedule showing the deferred revenue attxxxxtable to each of the customers of SSI and its Subsidiaries as of a date not more than five days prior to the Closing Date; and
(o) HOLL shall have received satisfactory evidence that both the Sharehoxxxx Agent Agreement and the Voting Agreement of even date herewith by and among SSI, the Shareholder Agent and certain of the SSI Shareholders remain in full force and effect against all parties thereto, and shall not have been modified or amended in any material respect.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 6.01 Conditions to Obligations of Sky King and Each Party's Obligation to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and the Sky King Shareholders each party to consummate effect the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) at or waiver, where permissible, prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each Effective Time, of the following conditions:
(a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this This Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders affirmative vote of the shareholders of North Coast by the requisite vote in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers applicable law and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted by the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).Storm;
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(nb) No statute, rule, regulation, executive order, decree, injunction or restraining other order (whether temporary, preliminary or permanent), shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority which is in effect and has the effect of prohibiting the consummation of the Merger; provided, however, that prohibits each of the parties shall have used its best efforts to prevent the entry of any injunction or restricts other order and to appeal as promptly as possible any injunction or other order that may be entered;
(c) The waiting period (and any extension thereof ) applicable to the consummation of the Merger under the HSR Act if required shall have expired or been terminated;
(d) Each of the related transactionsconsents listed on Schedule 6.01(d) hereto shall have been obtained.
(e) North Coast has, or on or before the Effective Time of this Agreement shall have completed the issuance of North Coast's Series A Senior Subordinated Redeemable Convertible Debentures (the "Debentures") in the face amount of $1,000,000 to Rock Solid Group LLC, a Colorado limited liability company, upon the terms and conditions set forth in the Subscription Agreement and other documentation relating to the issuance of the Debentures. Subject to and upon the Closing of this Agreement, Storm agrees to assume the liabilities and obligations of North Coast under the Debentures as further set forth in this Agreement. On or prior to the Effective Time, North Coast shall secure, in writing, from all of the holders of the Debentures, their consent to Storm's assumption of North Coast's liability and obligations to perform under the terms and conditions of the Debenture Agreement.
(f) Upon the close of this Agreement the executive offices of the Surviving Corporation shall be relocated to 0000 - 000xx Xxxxxx XX, Xxxxxxxx, Xxxxxxxxxx 00000.
Appears in 1 contract
Samples: Share Exchange Agreement (Storm High Performance Sound Corp/Fl)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King and the Sky King Shareholders7.1 CONDITIONS TO THE OBLIGATIONS OF PROVANT AND ACQUISITION. The obligations of Sky King Provant and the Sky King Shareholders Acquisition to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (at the Closing, or waiver by Sky King and the Sky King Shareholders) at Provant in writing, in whole or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) part, of each of the following conditions:
(a) Acquiror The IPO and each of the Additional Mergers shall have sold, transferred or otherwise disposed of all of its present assets and shall as of been completed at the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999same time.
(b) Acquiror The Financial Condition shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transactionbeen satisfied, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount good faith determination of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A)Provant.
(c) On Each of the representations, warranties, agreements and covenants of the Company and the Stockholders (giving effect to the Company Disclosure Schedule, but not to any Company Disclosure Supplement) shall be true and correct as of, and shall not have been violated in any respect at, the Closing as though made on and as of the Closing, except for (i) representations, warranties, agreements and covenants which make reference to a specific date (including the date of this Agreement), which need only be true and correct as of the specified date, and (ii) failures of representations or warranties to be true and correct as of the Closing solely on account of matters arising between the date hereof and the Effective Time in the ordinary course of the Company's business, if and to the extent such matters are consistent with past practice of the Company and are not materially adverse to the Company, either singly or in the aggregate; the Company and the Stockholders shall, on or before the Closing, Acquiror have performed all of their respective obligations under this Agreement which by the terms hereof are to be performed on or before the Closing; and there shall have secured general releases delivered to Provant and Acquisition a certificate signed by the President of the Company on behalf of and in the name of the Company and by the Stockholders dated as of the date of the Closing to the foregoing effect.
(d) The Merger and this Agreement shall have been approved by the requisite vote of the stockholders of the Company, and not more than 5.0% of the Shares shall constitute Dissenting Shares.
(e) No action or proceeding by or before any court or other governmental body shall have been instituted by any governmental body or other person or entity or threatened in writing by any governmental body which seeks to restrain, prohibit or invalidate the transactions contemplated by this Agreement or which would materially adversely affect the right of the Surviving Corporation, as a subsidiary of Provant, to conduct the business of the Company as presently conducted by the Company or which claims damages from each Provant with respect to the transactions contemplated hereby.
(f) Provant and Acquisition shall have received the opinion of counsel to the Company, dated the date of the Closing and in form and substance reasonably satisfactory to Provant and its directors counsel, substantially to effect set forth on Exhibit 7 (subject to qualifications and officers agreeing to release Acquiror from any assumptions customary in transactions such as the Merger), which opinion provides that it may be relied upon by the Underwriter.
(g) All proceedings taken by the Company and all claims, liabilities, obligations instruments executed and demands delivered by the Company prior to the date of the Closing in connection with -39- 40 the transactions herein contemplated shall be satisfactory in form and substance to counsel for Provant acting reasonably.
(h) No statute, rule or regulation shall have been enacted or promulgated which makes illegal or prohibits consummation of the transactions contemplated hereby or which materially and adversely affects the ability of the Surviving Corporation, as a subsidiary of Provant, to conduct the business of the Company as presently conducted by the Company.
(i) The Stockholders shall have executed and delivered to Provant the Employment Contracts and the Non-Competition and Non-Disclosure Agreements, and all stockholders of the Company (other than holders of Dissenting Shares, if any) shall have executed and delivered to Provant the Investment Letters.
(j) The Company shall have delivered to Provant and Acquisition a certificate of its Secretary certifying as to requisite corporate or other action authorizing the transactions contemplated by this Agreement.
(d) The representations , the incumbency of officers and warranties of Acquiror directors, and the Sub set out in this Agreement shall be true and correct in all material respects at and as status of record ownership of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow AgentShares.
(k) There The Company shall be have delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the ClosingProvant such other certificates, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closingdocuments, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, opinions as well as all filings with, Provant and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger its counsel shall have been securedreasonably require.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
Samples: Merger Agreement (Provant Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King CNF and the Sky King ShareholdersShareholder. The obligations of Sky King CNF and the Sky King Shareholders Shareholder to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King CNF and the Sky King ShareholdersShareholder) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions:
(a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub JLL set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(eb) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(fc) The Merger shall have been approved by Sky King and the Sky King Shareholders JLL in accordance with the provisions of the CBCADGCL. The Board of Directors of JLL and Acquiror shall have approved the execution of this Agreement and the Merger thereby.
(d) Acquiror shall and shall cause the Historic Acquiror Shareholders to enter into, and the Acquiror Escrow Shares shall be delivered pursuant to the, the Acquiror Escrow Agreement the form of which is attached hereto as Exhibit 1.4(a).
(e) Acquiror shall deliver certificates evidencing the Acquiror Options to the persons and in the amounts set forth on Schedule 1.2(c);
(f) Certain shareholders of Acquiror shall have delivered voting proxies to the Shareholder the form of which is attached hereto as Exhibit 5.20 with respect to an aggregate of 1,6000,000 shares of Common Stock;
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock CNF and the VDC Designee Shareholder shall not have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior received written advice from their tax advisors to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied effect that the Merger results in will not qualify as a tax-free reorganization under Section 368 of the Code.;
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(kh) There shall be delivered to Sky King CNF and the Sky King Shareholders Shareholder an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have has complied in all material respects with their the covenants and agreements set forth herein that are required to be complied with by the Closing.
(li) Sky King There shall be delivered to CNF and the Shareholder an officer's certificate of JLL to the effect that all of the representations and warranties of JLL set forth herein are true and complete in all material respects as of the Closing, and JLL has complied in all material respects with the covenants and agreements set forth herein that are required to be complied with by the Closing.
(j) Acquiror shall have completed prior a private placement to accredited investors which, after expenses, produced net proceeds of no less than $1,000,000. Acquiror shall, upon the ClosingEffective Time, have cash on deposit of no less than $1,000,000, subject only to its satisfactionthose liabilities reflected within the Acquiror Financial Statements, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business Schedule 4.2(g) and prospects of Acquirorany additional liabilities incurred in connection with this transaction that have been agreed to by all parties hereto.
(mk) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(nl) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 8.1 Conditions to Obligations of Sky King and Each Party's Obligation to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and the Sky King Shareholders each party to consummate the Merger and to take the other transactions contemplated actions required to be consummated taken by it at the Closing are shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by both the Company and Acquiror, in whole or in part):
(a) All necessary approvals under federal and state securities laws and other authorizations relating to the issuance of the Acquiror Stock to be issued to Company stockholders in connection with the Merger shall have been received.
(b) This Agreement, the Merger and the other actions contemplated hereby shall have been approved by the requisite vote of the stockholders of the Company under applicable law.
(c) The Company and Acquiror shall have delivered to each other a certificate regarding the calculation of the Exchange Ratio and the number of share of Acquiror Stock to be received by each holder of Company Stock.
(d) Acquxxxx'x Xoard of Directors shall have received the written opinion of Alliant Partners, financial advisor to Acquiror, dated the date of this Agreement, to the effect that the Exchange Ratio is fair to the Acquiror from a financial point of view.
8.2 Additional Conditions to Acquiror's and Mergxx Xxx's Obligation to Consummate the Merger. Acquiror's and Mergxx Xxx's obligations to consummate the Merger and to take the other actions required to be taken by Acquiror and Merger Sub at the Closing is subject to the satisfaction of each of the following conditions (any of which may be waived by Acquiror, in whole or waiver by Sky King in part):
(a) Acquiror's Board of Directors shall have ratified or approved the execution of this Agreement and the Sky King Shareholdersother Transactional Agreements by Acquiror and shall have approved the consummation of the Transactions.
(b) In addition to the documents required to be received under this Section 8.2, Acquiror shall also have received the following documents:
(i) the opinion letter from Brobxxx, Xxlexxx & Xarrxxxx, counsel to the Company, dated the date hereof, in the form attached as Exhibit G;
(ii) a certificate, duly executed by the Company, certifying that (A) each of the representations and warranties made by the Company and the Stockholders in this Agreement is accurate in all respects as of the date hereof and (except for any such representations and warranties which are made as of and relate solely to a particular date) as of the Closing Date with the same force and effect as though made on and as of the Closing Date, (B) each of the covenants and obligations that the Company are required to have complied with or performed pursuant to this Agreement or any of the other Transactional Agreements at or prior to the Closing has been duly complied with and performed in all respects, and (or at such other time prior thereto as may be expressly provided in this AgreementC) of each of the following conditions:conditions set forth in Section 8.2 has been satisfied in all respects;
(aiii) such other documents as Acquiror may reasonably request in good faith for the purpose of otherwise facilitating the consummation or performance of any of the Transactions;
(iv) copies of resolutions of the Company, certified by the Secretary of the Company, authorizing the execution, delivery and performance of the Transactional Agreements and the Transactions, and copies of resolutions of the meeting of stockholders of the Company (or written consent in lieu thereof), certified by the Secretary of the Company, authorizing the execution, delivery and performance of the Transactional Agreements and the Transactions; and
(v) executed amendments to the option agreement of Jamsxxx Xxxxxx xxx Jack Xxxxxx, xxd such amendments shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so terms that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection are consistent with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount terms of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A)Schedule 8.2.
(c) On or before the Closing, Each Person (other than Acquiror and Merger Sub) shall have secured general releases from each of its directors executed and officers agreeing delivered all Transactional Agreements to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreementwhich it is a party.
(d) The representations holders of no more than one percent (1%) of the outstanding shares of Company Stock shall have demanded and warranties of Acquiror and the Sub set out in this Agreement not lost or withdrawn, or shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such timeeligible to demand, dissenters' rights.
(e) Each The holders of Acquiror Series C Preferred Stock and the Sub Series C-1 Preferred Stock shall have complied converted their Series C Preferred Stock and Series C-1 Preferred Stock into Company Common Stock as provided in a timely manner and in all material respects with Article IV Section B.5 of the respective covenants and agreements set out in this AgreementCompany's Certificate of Incorporation.
(f) The Merger New Options shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCAgranted pursuant to Section 3.2.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations received acceptances from office the Key Employees to the employee offers pursuant to Section 7.7.
8.3 Additional Conditions to the Company's Obligation to Consummate the Merger. The Company's obligation to consummate the Merger and shall have in conjunction therewith reconstituted to take the Board of Directors other actions required to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated be taken by the holders of Company at the Sub Preferred Stock and Closing shall be subject to the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately satisfaction, at or prior to the Closing)., of each of the following conditions (any of which may be waived by the Company, in whole or in part):
(ha) Sky King and The Company shall have received the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.following documents:
(i) the opinion letter from Morrxxxx & Xoerxxxx XXX, counsel to Acquiror shall enter into Employment Agreements with and Merger Sub, dated the date hereof, in the form attached as Exhibit H;
(ii) a certificate, duly executed by Acquiror, certifying that (A) each of Frederick A. Moran the representations and James Roberts substantially warranties made by Acquiror in accordance this Agreement is accurate in all respects as of the date hereof and (except for any such representations and warranties which are made as of and relate solely to a particular date) as of the Closing Date with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii)the same force and effect as though made on and as of the Closing Date, (B) each of the covenants and obligations that Acquiror is required to have complied with or performed pursuant to this Agreement or any of the other Transactional Agreements at or prior to the Closing has been duly complied with and performed in all respects, and (C) each of the conditions set forth in Section 8.3 has been satisfied in all respects; and
(iii) such other documents as the Company may reasonably request in good faith for the purpose of otherwise facilitating the consummation or performance of any of the Transactions.
(jb) Subject to the terms and conditions of this Agreement, each of Acquiror and Merger Sub shall have executed and delivered the Escrow Agreement all Transactional Agreements to Sky King and the Escrow Agentwhich it is a party.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Section 8.1 Conditions to Each Party's Obligations of Sky King and to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and each Party to effect the Sky King Shareholders to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing this Agreement are subject to the satisfaction (or or, where permissible, waiver by Sky King and the Sky King Shareholders) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) Closing, of each of the following conditions:
(a) Acquiror none of Holding Company, CSI, any CSI Subsidiary, Belden or Merger Sub shall have soldbe subject to any effective order, transferred decree, ruling or other action of a court of com- petent jurisdiction which restrains, delays or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with prohibits the transactions contemplated by this Agreement;
(b) the Escrow Agreement shall have been signed by all parties thereto; and
(c) any waiting period applicable to the consummation of this Agreement under the HSR Act and all applicable pre-merger laws of other countries shall have expired or been terminated.
Section 8.2 Conditions to the Obligations of Belden and Merger Sub to Effect the Merger. The obligations of Belden and Merger Sub to effect the transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the Closing of each of the following conditions:
(da) The representations and warranties of Acquiror and the Sub Holding Company set out forth in this Agreement Agreement, without taking into account any qualifications as to materiality contained in such representations and warranties, shall be true and correct when made (other than the representation and warranty set out in all material respects at Section 4.28 which shall be true and correct as of the Closing Date) and as of the time Closing Date (other than any representations or warranties set out in Sections 4.13(c), 4.18(c), 4.18(d), 4.21, 4.22, 4.25, the fourth sentence of 4.3, the first sentence of 4.23 and the first sentence of 4.24, which shall be true and correct as of the date of this Agreement (or in the case of Section 4.18(d) as of the date indicated), and in Section 4.6 and 4.27, which are addressed in Section 8.2(b) below), and Holding Company, CSH, CVC and the other Ultimate Owners shall have performed the obligations to be performed by each under this Agreement prior to the Closing Date (other than the obligations under Section 6.2(ii) and (iii) which are addressed in Section 8.2(b) below), except where the failure to be so true and correct, and all failures to perform and comply with such obligations (without taking into account any qualifications as to materiality contained in such representations, warranties, covenants and agreements), would not be reasonably likely to have, individually or in the aggregate, a CSI Material Adverse Effect, and provided that Holding Company shall not be deemed to be in breach of any of such representations or warranties for purposes of this Section 8.2(a) by taking any action expressly disclosed in Section 6.2 of the CSI Disclosure Schedule.
(b) The representations and warranties of Holding Company set forth in Sections 4.6 and 4.27 shall be true and correct when made and as of the Closing as though such Date, except to the extent the representations and warranties were in Section 4.6 are made at as of a specific date, which shall be true and correct as of such timedate, and Holding Company, CSH, CVC and the other Ultimate Owners shall be in compliance with Sec- xxxx 0.0(xx) xxx (xxx) xxxor to the Closing Date.
(c) Belden shall have received a certificate to the effect that the conditions set forth in Sections 8.2(a), 8.2(b), 8.2(e) and 8.2(f) have been satisfied, and except for changes resulting from taking any action expressly disclosed in Section 6.2 of the CSI Disclosure Schedule, that the representations and warranties of Holding Company set forth in this Agreement are true and correct as of the Closing Date, other than to the extent any representations or warranties set out in Sections 4.3, 4.6, 4.13(c), 4.18(c), 4.18(d), 4.21, 4.22, 4.23, 4.24 and 4.25 are limited to the date hereof or for Sections 4.6(i) and 4.18(d) to another specific date, signed on behalf of Holding Company by an officer of Holding Company (the "Closing Certificate"). Any information delivered by Holding Company to Belden prior to the Closing Date for attachment to the CSI Disclosure Schedule to bring down the representations and warranties contained herein to reflect changes or events that occur after the date hereof shall supplement or update the CSI Disclosure Schedule, but solely for determining if any representation or warranty set forth in this Agreement is true and correct as of the Closing Date for purposes of the closing condition in this Section 8.2(c) and for purposes of Beldxx'x xxxlity to seek indemnification under Article X based on the Closing Certificate (it being understood that the supplemented or updated CSI Disclosure Schedule shall not be used for determining if any representation or warranty set forth in this Agreement shall have been true and correct on the date hereof, and further that the updating or supplementing of the CSI Disclosure Schedule shall not limit or affect Beldxx'x xxxhts under the closing conditions contained in Section 8.2(a)).
(d) Belden shall have received an opinion from Dechert Price & Rhoaxx, counsel to Holding Company, in the form attached as Schedule 8.2(d).
(e) Each of Acquiror Holding Company and CSI shall have completed the transactions to divest LoDan, gComData and the Sub Minor Subsidiaries (it being understood that any transaction in connection with matters noted in this condition shall have complied be substantially in a timely manner and in all material respects accordance with the respective covenants and agreements set out transactions described in this AgreementSchedule 8.2(e) or as otherwise agreed in advance by Belden, which approval shall not be unreasonably withheld).
(f) The Merger shall have been approved by Sky King Holding Company, CSI and the Sky King Shareholders in accordance CSI Subsidiaries shall not have any liability or obligation for Funded Debt at Closing other than under the CSI Credit Agreement or with respect to the provisions of the CBCAJSD.
(g) On or before the Closing, the officers and directors of Acquiror CSH shall have tendered their immediate resignations from office provided written evidence reasonably satisfactory to Belden of the CSI Credit Agreement Releases being signed and ready to deliver to Belden at Closing upon payment of the amounts under the CSI Credit Agreement pursuant 42 to clause (i) of Section 3.4, and Belden shall have received a customary letter from the Lenders under the CSI Credit Agreement containing payoff amounts and reasonable assurance covenants in conjunction therewith reconstituted the Board favor of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing)Belden.
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror Belden shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closingreceived, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed at least one business day prior to the Closing, to its satisfactionClosing Date, a due diligence review certificate signed on behalf of Holding Company by an officer of Holding Company certifying the amount of the financial condition, results payments to be made by Belden under each of operations, properties, assets, liabilities, business clauses (ii) and prospects (iii) of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.Section 3.4
Appears in 1 contract
Samples: Merger Agreement (Belden Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 10.1 Conditions to Obligations the Obligation of Sky King and the Sky King Shareholders. Each Party The respective obligations of Sky King and the Sky King Shareholders each party to consummate effect the Merger and the other transactions contemplated to shall be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) fulfillment at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each Effective Time of the following conditions:
(a) Acquiror no action, suit or proceeding instituted by any Governmental Authority shall have soldbe pending and no statute, transferred rule or otherwise disposed regulation and no injunction, order, decree or judgment of all any court or Governmental Authority of its present assets and competent jurisdiction shall as be in effect, in each case which would prohibit, restrain, enjoin or restrict the consummation of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.Mergers;
(b) Acquiror KF and CMPI shall have settled and/or satisfied all outstanding obligations obtained such permits, authorizations, consents, or liabilities so that as of approvals required to consummate the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).transactions contemplated hereby; and
(c) On or before the Closing, Acquiror KF and Opus shall have secured general releases from entered into the Put Agreement as contemplated in Section 1.2.
10.2 Conditions to the Obligations of KF and Merger Sub The obligations of KF and Merger Sub to effect the Merger are subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) CMPI 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 CMPI contained in this Agreement, to the extent qualified with respect to materiality shall be true and correct in all respects, and to the extent not so qualified shall be true and correct in all material respects, in each case, as of its directors the date of this Agreement and officers agreeing at and as of the Effective Time as if made at and as of such time, and KF shall have received a certificate of the Chief Executive Officer and the Chief Financial Officer of CMPI as to release Acquiror from any and the satisfaction of this condition;
(b) all claims, liabilities, obligations and demands proceedings to be taken by CMPI in connection with the transactions contemplated by this Agreement.
(d) The representations Agreement and warranties of Acquiror all documents, instruments and certificates to be delivered by CMPI in connection with the Sub set out in transactions contemplated by this Agreement shall be true reasonably satisfactory in form and correct in all material respects at substance to KF and as of the time of its counsel; and
(c) KF shall have received from Troy & Gould Professional Corporation, counsel to CMPI, an opinxxx, xxxxx the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the ClosingDate, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors addressed to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior KF substantially to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub effects set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closingon Exhibit 1 hereto.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
Samples: Merger Agreement (Knight Fuller Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 8.1 Conditions to Obligations of Sky King and All Companies' Obligation to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and all Companies to effect the Sky King Shareholders to consummate the Merger and the other transactions contemplated to herein shall be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each Effective Time of the following conditions, any one of which may be waived by a writing signed by VFNX and UCT:
(a) Acquiror 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 sold, transferred or otherwise disposed of all of its present assets been issued and shall as of the Closing have assets consisting of at least: (i) $1 million remain in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999effect.
(b) Acquiror 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 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 settled and/or satisfied been filed, occurred, or been obtained (all outstanding obligations 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 liabilities so that as of blue sky permits and other authorizations necessary to issue the Closing Acquiror VFNX Shares in exchange for the Shares and to consummate the Merger shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A)been received.
(c) On or before the Closing, Acquiror The other Company shall have secured general releases from each of performed in all material respects its directors obligations under this Agreement required to be performed by it at or prior to the Effective Time and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out other Company contained in this Agreement shall be true and correct in all material respects at and as of the time of the Closing Effective Time as though such representations and warranties were if made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than except as contemplated by this Agreement) to complete the Merger , and each Company shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation received a certificate of the Merger Chairman of the Board, the President, or an Executive Vice President of the related transactionsother Company as to the satisfaction of this condition.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 SECTION 7.1 Conditions to Obligations of Sky King and Each Party's Obligation to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and the Sky King Shareholders each party to consummate effect the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and of the Sky King Shareholders) at or following conditions prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditionsEffective Time:
(a) Acquiror the receipt of regulatory approvals which approvals shall not have imposed any condition or requirement which in the judgment of Compass would materially and adversely impact the economic or business benefits of the transactions contemplated by this Agreement or otherwise would in the judgment of Compass be so burdensome as to render inadvisable the consummation of the Merger, and the expiration of any applicable waiting period with respect thereto; and
(b) the Closing will not violate any injunction, order or decree of any court or governmental body having competent jurisdiction.
SECTION 7.2 Conditions to the Obligations of Compass and Compass Texas to Effect the Merger. The obligations of Compass and Compass Texas to effect the Merger are subject to the satisfaction or waiver of the following conditions prior to the Effective Time:
(a) all representations and warranties of the Bank shall be true and correct in all material respects as of the date hereof and at and as of the Closing, with the same force and effect as though made on and as of the Closing;
(b) the Bank shall have soldperformed in all material respects all obligations and agreements and in all material respects complied with all covenants and conditions, transferred contained in this Agreement to be performed or complied with by it prior to the Effective Time; provided, however, that in the event of a material breach by the Bank of a covenant or condition contained in this Agreement that can be cured, the Bank shall have 30 days after the giving of written notice of such breach to cure such breach;
(c) there shall not have occurred a Material Adverse Effect with respect to the Bank;
(d) the directors of the Bank at the Effective Time shall have delivered to Compass an instrument in the form of Exhibit H attached hereto dated the Effective Time releasing the Bank from any and all claims of such directors (except as to their deposits and accounts, and as to their rights of indemnification pursuant to the Articles of Association or Bylaws of the Bank) and shall have delivered to Compass their resignations as directors of the Bank;
(e) the Bank shall have used its best efforts to deliver to Compass an instrument in the form of Exhibit H attached hereto dated the Effective Time executed by the officers of the Bank at the Effective Time releasing the Bank from any and all claims of such officers (except as to deposits and accounts and accrued compensation permitted by their respective agreements with the Bank and as to their rights of indemnification pursuant to the Articles of Association or Bylaws of the Bank);
(f) Compass shall have received the opinions of counsel to the Bank acceptable to it as to the matters set forth on Exhibit E attached hereto;
(g) Compass shall have received a letter from KPMG Peat Marwick, LLP, dated as of the Effective Time, to the effect that the Merger will qualify for pooling-of-interests accounting treatment if closed and consummated in accordance with this Agreement;
(h) there shall be no Bank Indebtedness;
(i) Compass shall have received from holders of the Bank's capital stock receiving at least 50% of the total Merger Consideration a representation that they have no plan or intention to sell or otherwise disposed dispose of (i) shares of the Bank prior to and in connection with the Merger to the Bank, Compass or any party related to the Bank or Compass and (ii) shares of Compass Common Stock to be received pursuant to the Merger to Compass or any party related to Compass.
(j) Compass shall have received an opinion of counsel satisfactory to it on the basis of certain facts, representations, and assumptions set forth in such opinion to the effect that the Merger will qualify as a reorganization under Section 368(a) of the Code (in rendering such opinion, such counsel may require and rely upon and may incorporate by reference representations and covenants, including those contained in certificates of officers and/or directors of Compass, the Bank, Compass Texas and others);
(k) the Bank shall have delivered to Compass a schedule of all transactions in the capital stock (or instruments exercisable for or convertible into capital stock) of its present assets the Bank of which the Bank has knowledge from and including the date of this Agreement through the Effective Time;
(l) Compass shall have received an investment representation certificate in substantially the form of Exhibit D from each of the Shareholders dated as of the Effective Time;
(m) There shall be no warrants, options, convertible securities or other securities or instruments entitling the holder thereof to acquire Shares;
(n) The Bank shall have received a title policy from a title company reasonably acceptable to Compass for each owned bank premises insuring in the Bank good and indefeasible title in the Bank in the book value amount of such premises; and
(o) Compass shall have received certificates dated as of the Closing have assets consisting Date executed by the Chairman of at least: the Board of the Bank and the Secretary or Cashier of the Bank, respectively, certifying in such reasonable detail as Compass may reasonably request, to the effect described in Sections 7.2(a), (ib), (c), (h), (l) $1 million in cash or other liquid assets; and (iim).
SECTION 7.3 Conditions to the Obligations of the Bank to Effect the Merger. The obligations of the Bank to effect the Merger are subject to the satisfaction or waiver of the following conditions prior to the Effective Time:
(a) notes receivable all representations and warranties of not less than $4 million Compass shall be true and correct in all material respects as of the date hereof and at and as of the Closing, with maturities the same force and effect as though made on or before 1 August, 1999.and as of the Closing;
(b) Acquiror Compass and Compass Texas shall have settled and/or satisfied performed in all outstanding material respects all obligations and agreements and in all material respects complied with all covenants and conditions contained in this Agreement to be performed or liabilities so complied with by either of them prior to the Effective Time; provided, however, that as in the event of the Closing Acquiror a material breach by Compass or Compass Texas of a covenant or condition contained in this Agreement that can be cured, Compass and Compass Texas shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with 30 days after the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything giving of written notice of such breach to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).cure such breach;
(c) On or before the Closing, Acquiror Bank shall have secured general releases from each received the opinion of its counsel to Compass and Compass Texas acceptable to it, as to the matters set forth on Exhibit F attached hereto;
(d) the Bank shall have delivered to the directors and officers agreeing of the Bank who have delivered to the Bank a release Acquiror pursuant to Section 7.2 (e) an instrument in the form of Exhibit I attached hereto dated the Effective Time releasing such directors and officers from any and all claimsclaims of the Bank (except as to indebtedness or other contractual liabilities); provided, liabilitieshowever, obligations that such releases shall not release an action against such directors and demands officers by Compass or Compass Texas in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.;
(e) Each of Acquiror and the Sub Shareholders shall have complied in a timely manner and in all material respects with received the respective covenants and agreements set out in this Agreement.Merger Consideration payable pursuant to Section 1.6(b); and
(f) The Merger Compass shall have been approved by Sky King and advised the Sky King Shareholders Bank in accordance writing that it will be prepared to file the Registration Statement with the provisions of SEC within three business days after the CBCA.Closing Date; and
(g) On or before the Closing, the officers and directors of Acquiror Bank shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders received certificates dated as of the Sub Preferred Stock Closing Date, executed by appropriate officers of Compass and Compass Texas, respectively, certifying, in such detail as the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be Bank may reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub request, to the effect that all of the respective representations described in Sections 7.3(a) and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing(b).
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 SECTION 6.01 Conditions to the Obligations of Sky King the Purchaser and the Sky King ShareholdersTirex. The obligations of Sky King the Purchaser and the Sky King Shareholders to consummate the Merger and the other transactions contemplated to be consummated by it Tirex are, at the Closing are Purchaser's and Tirex' option, subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each fulfillment of the following conditionsconditions hereinafter set forth:
(a) Acquiror The Company shall have sold, transferred or otherwise disposed of performed and complied with all of its present assets the conditions and shall as of agreements required by this Agreement to be performed or complied with by it prior to the Closing have assets consisting of at least: (i) $1 million Effective Time in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999all material respects.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this Agreement Company contained herein shall be have been true and correct in all material respects at and as of the time date hereof and shall be true and correct as of the Closing as though Effective Time, except for changes contemplated by this Agreement, and the Purchaser shall have received a certificate of the President of the Company to such representations effect.
(c) The Company shall have completed at least the minimum amount of a private placement on a "best efforts, 30 Units or none basis" of 85 Units each comprised of one $10,000 principal amount 10% convertible debenture each convertible into a Common Share at the rate of $.20 (the "Debenture") and warranties were made at 10,000 Common Shares pursuant to the terms and as conditions of a Private Placement Memorandum to be dated November , 1997 and any and all supplements and amendments thereto . The Company shall have assets comprised of the gross proceeds of the private placement less a placement agent's commission of 10%, attorney's fees of no more than $5,000 and attorneys reasonable disbursements. In the event that the closing is effected after the sale of the minimum amount of the private placement, but before the completion of the private placement, then the private placement shall continue and the Units shall thereafter be comprised of a $10,000 Tirex debenture with terms and conditions identical to the Debentures and 10,000 shares of Tirex common stock.
(d) There shall have been no Material Adverse Change in the business, properties or financial condition of the Company from such timecondition on the date hereof.
(e) Each On the Closing Date (i) there shall be no injunction, restraining order, or order of Acquiror any nature issued by a court of competent jurisdiction which directs that any transaction contemplated by this Agreement shall not be consummated and (ii) there shall be no suit, action, investigation or other proceeding pending or threatened by any governmental agency or private party seeking to restrain or prohibit the Sub shall have complied consummation of any material transaction contemplated hereby or the obtaining of any material amount of damages from any party hereto or any officer or director of any such party, in a timely manner and in all material respects connection with the respective covenants and agreements set out in this AgreementMerger.
(f) The Merger shall have been approved by Sky King issued and the Sky King Shareholders in accordance with the provisions outstanding shares of the CBCA.Company's Common Stock shall consist of not more than: (i) the number of shares sold in the private placement (from 300,000 to 850,000) plus (ii) the 3,000,000 shares issued and outstanding on the date hereof. 168
(g) On or before the Closing, the officers and directors of Acquiror Purchaser shall have tendered their immediate resignations received an opinion from office Xxxxx X. Xxxxxxx, Esq., reasonably satisfactory to Purchaser and its counsel which shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders state, among other things, that all issuances of the Sub Preferred Company's Common Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately occurred no less than six months prior to the Closing).effective date of the Merger and that, upon the filing of a Form D by the Purchaser and/or Tirex, the merger of the Company and Purchaser will qualify under Rule 506 of Regulation D.
(h) Sky King and The principal shareholders will have provided the Sky King Shareholders shall be reasonably satisfied that Company with the Merger results in a tax-free reorganization Indemnification Agreement required under Section 368 1.03(d) hereof.
SECTION 6.02 Conditions to the Obligations of the CodeCompany. The obligations of the Company are, at the Company's option, subject to the fulfillment of the conditions hereinafter set forth.
(ia) Acquiror The Purchaser and Tirex shall enter into Employment Agreements have each performed and complied with each all of Frederick A. Moran the conditions and James Roberts substantially agreements required by this Agreement to be performed or complied with by it prior to the Effective Time in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii)all material respects.
(jb) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective The representations and warranties of Acquiror each of the Purchaser and Sub set forth Tirex contained herein are shall have been true and complete correct in all material respects as of the Closing, date hereof and shall be true and correct as of the Effective Time and the Acquiror Company shall have received a certificate of the President of each of the Purchaser and Sub have complied in all material respects with their covenants and agreements set forth herein that are required Tirex to be complied with by the Closingsuch effect.
(lc) Sky King There shall have completed prior to been no Material Adverse Change in the Closingbusiness, to its satisfaction, a due diligence review properties or financial condition of the financial condition, results of operations, properties, assets, liabilities, business and prospects of AcquirorPurchaser or Tirex from such condition on the date hereof.
(md) All directorThe Letter of Intent, shareholderdated August 13, lender1997, lessor between Tirex and other partiesX.X. Xxxxxx & Co., Inc., relating to a public offering of Tirex' consents and approvalssecurities, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall not have been securedabandoned or materially modified.
(ne) No statuteOn the Closing Date (i) there shall be no injunction, rule, regulation, executive restraining order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced of any nature issued by any a court of competent jurisdiction which directs that any transaction contemplated by this Agreement shall not be consummated and (ii) there shall be no suit, action, investigation or other proceeding pending or threatened by any governmental authority that prohibits agency or restricts private party seeking to restrain or prohibit the consummation of any material transaction contemplated hereby or the obtaining of any material amount of damages from any party hereto or any officer or director of any such party, in connection with the consummation of the Merger.
(f) The Company shall have received an opinion from Xxxxxxx Xxxx Xxxxxx, Esq., reasonably satisfactory to the Company and its counsel.
(g) Tirex and the Company shall have agreed that certain consulting agreement by and among them and Xx. Xxxxxx Xxxxxxxx and Xxxx Xxxxxxxxx, dated as of June 9, 1997, pursuant to which the Company has rendered services to Tirex and pursuant to which the Company has accrued all fees which have been due and payable, shall continue in effect notwithstanding the merger. The parties acknowledge that the Company's shareholders prior to the private placement are receiving 3,000,000 shares of Tirex common stock in the Merger or the related transactionsin consideration of all consulting fees heretofore and hereafter accrued.
Appears in 1 contract
Samples: Merger Agreement (Tirex Corp)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King IPF's and the Sky King Shareholders' Obligations. The obligations of Sky King IPF and the Sky King Shareholders to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King ShareholdersIPF) at or prior to the Closing Effective Time (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions:
(a) Acquiror NATK shall have sold, transferred or otherwise disposed of all of its present assets and shall entered into binding employment agreements that have not been terminated by NATK as of the Closing have assets consisting with each of at least: (i) $1 million in cash or other liquid assets; Xxxxxxx, Xxxxx and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999Xxxxx.
(b) Acquiror IPF shall have settled and/or satisfied all outstanding obligations or liabilities so that as had the opportunity to conduct a due diligence review of the Closing Acquiror books, records, operations, physical plant and facilities, contracts and other documents of NATK and nothing shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction come to its attention that would reasonably be expected to have a Material Adverse Effect on NATK on and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of after the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before IPF shall be satisfied that the Closing, Acquiror shall have secured general releases from each receipt of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands the shares of NATK Common Stock by the holders of IPF Common Stock in connection with the transactions contemplated by this AgreementMerger is a tax- free sale or exchange to such holders.
(d) The representations and warranties of Acquiror NATK and the Sub set out in this Agreement shall be true and correct in all material respects at respects, and as no fact or circumstance shall have come to the attention of IPF that is not disclosed in this Agreement or any document or other writing delivered by NATK to IPF prior to the time date of this Agreement that could reasonably be expected to have a Material Adverse Effect on NATK or the Closing as though such representations and warranties were made at and as of such timeconsideration to be received by the Shareholders in connection with the Merger.
(e) Each of Acquiror NATK and the Sub shall have complied in a timely manner and in all material respects with the their respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the ClosingAll directors', the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closingshareholders', and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closinglenders', to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor lessors' and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured, including without limitation that this Agreement shall have been approved by the affirmative vote of the shareholders of IPF by the requisite vote in accordance with the TBCA.
(ng) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
(h) The Closing shall have occurred not later than June 28, 1995, unless such date is extended by the mutual written agreement of NATK, the Sub and IPF.
(i) Before the Closing, NATK shall have raised not less than $1 million in cash in connection with one or more offerings of its equity or debt securities or other rights to acquire its equity or debt securities.
Appears in 1 contract
Samples: Merger Agreement (North American Technologies Group Inc /Mi/)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 7.1 Conditions to Obligations of Sky King and Each Party's Obligation to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and the Sky King Shareholders each party to consummate the Merger and to take the other transactions contemplated actions required to be consummated taken by it at the Closing are shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by both the Company and Acquiror, in whole or in part):
(a) All necessary approvals under federal and state securities laws and other authorizations relating to the issuance of the Acquiror Stock to be issued to Company shareholders in connection with the Merger shall have been received.
(b) This Agreement, the Merger and the other actions contemplated hereby shall have been approved by the requisite vote of the shareholders of the Company under applicable law.
(c) Acquiror shall have received a letter from Ernst & Young LLP dated as of the date hereof and addressed to Acquiror, and Company shall have received a letter from Ernst & Young LLP dated as of the date hereof and addressed to Company, regarding such firm's unqualified concurrence with Acquiror's management's and Company's management's conclusion that the business combination to be effected by the Merger will qualify as a pooling of interests transaction under GAAP if consummated in accordance with this Agreement.
7.2 Additional Conditions to Acquiror's and Merger Sub's Obligation to Consummate the Merger. Acquiror's and Merger Sub's obligations to consummate the Merger and to take the other actions required to be taken by Acquiror and Merger Sub at the Closing is subject to the satisfaction of each of the following conditions (any of which may be waived by Acquiror, in whole or waiver by Sky King in part):
(a) Acquiror's Board of Directors shall have ratified or approved the execution of this Agreement and the Sky King Shareholdersother Transactional Agreements by Acquiror and shall have approved the consummation of the Transactions.
(b) In addition to the documents required to be received under this Section 7.2, Acquiror shall also have received the following documents:
(i) the opinion letter from Wilsxx Xxxxxxx Xxxxxxxx & Rosaxx, xxunsel to the Company, dated the date hereof, in the form attached as Exhibit C;
(ii) a certificate, duly executed by the Company, certifying that (A) each of the representations and warranties made by the Company in this Agreement and in the other Transactional Agreements is accurate as of the date hereof , (B) each of the covenants and obligations that the Company is required to have complied with or performed pursuant to this Agreement or any of the other Transactional Agreements at or prior to the Closing has been duly complied with and performed in all respects, and (or at C) each of the conditions set forth in Section 7.2 has been satisfied in all respects; and
(iii) such other time prior thereto documents as Acquiror may be expressly provided request in good faith for the purpose of (i) evidencing the accuracy of any representation or warranty made by the Company, (ii) evidencing the compliance by the Company, or the performance by the Company of, any covenant or obligation set forth in this Agreement, (iii) evidencing the satisfaction of any condition set forth in Section 7.1 or this Section 7.2, or (iv) otherwise facilitating the consummation or performance of any of the Transactions.
(iv) copies of resolutions of the Company, certified by the Secretary of the Company, authorizing the execution, delivery and performance of the Transactional Agreements and the Transactions, and copies of resolutions of the meeting of shareholders of the Company (or written consent in lieu thereof), certified by the Secretary of the Company, authorizing the execution, delivery and performance of the Transactional Agreements and the Transactions.
(c) Each Person (other than Acquiror and Merger Sub) shall have executed and delivered all Transactional Agreements to which it is a party.
(d) Acquiror's Board of Directors shall have received the written opinion of Broadview International LLC, financial advisor to Acquiror, dated the date of this Agreement, to the effect that the Exchange Ratio is fair to the Acquiror from a financial point of view.
(e) The holders of no more than five percent (5%) of the outstanding shares of Company Stock shall have demanded and not lost or withdrawn, or shall be eligible to demand, dissenters' rights.
7.3 Additional Conditions to the Company's Obligation to Consummate the Merger. The Company's obligation to consummate the Merger and to take the other actions required to be taken by the Company at the Closing shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions:conditions (any of which may be waived by the Company, in whole or in part):
(a) Acquiror The Company shall have soldreceived the following documents:
(i) the opinion letter from Morrxxxx & Xoerxxxx XXX, transferred or otherwise disposed counsel to Acquiror and Merger Sub, dated the date hereof, in the form attached as Exhibit D;
(ii) a certificate, duly executed by Acquiror, certifying that (A) each of the representations and warranties made by Acquiror in this Agreement and in the other Transactional Agreements is accurate in all of its present assets and shall respects as of the date hereof, (B) each of the covenants and obligations that Acquiror is required to have complied with or performed pursuant to this Agreement or any of the other Transactional Agreements at or prior to the Closing have assets consisting of at least: (i) $1 million has been duly complied with and performed in cash or other liquid assets; all respects, and (iiC) notes receivable each of not less than $4 million with maturities on the conditions set forth in Section 7.3 has been satisfied in all respects; and
(iii) such other documents as the Company may request in good faith for the purpose of (A) evidencing the accuracy of any representation or before 1 Augustwarranty made by Acquiror and Merger Sub, 1999(B) evidencing the compliance by Acquiror and Merger Sub with, or the performance by Acquiror and Merger Sub of, any covenant or obligation set forth in this Agreement or any of the other Transactional Agreements, (C) evidencing the satisfaction of any condition set forth in Section 7.1 or this Section 7.3, or (D) otherwise facilitating the consummation or performance of any of the Transactions.
(b) Subject to the terms and conditions of this Agreement, each of Acquiror and Merger Sub shall have settled and/or satisfied executed and delivered all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, Transactional Agreements to which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced it is a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A)party.
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out Company shall each have received written opinions from their respective tax counsel (Morrxxxx & Xoerxxxx XXX and Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, xxspectively), in this Agreement shall be true form and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closingsubstance reasonably satisfactory to them, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all the Merger will constitute a reorganization within the meaning of Section 368(a) of the respective representations Code and warranties of such opinions shall not have been withdrawn; provided, however, that if the counsel to either Acquiror and Sub set forth herein are true and complete in all material respects as of the Closingor Company does not render such opinion, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required this condition shall nonetheless be deemed to be complied satisfied with by the Closing.
(l) Sky King shall have completed prior respect to such party if counsel to the Closing, other party renders such opinion to its satisfaction, a due diligence review such party. The parties to this Agreement agree to make such reasonable representations as requested by such counsel for the purpose of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquirorrendering such opinions.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
Samples: Merger Agreement (Informatica Corp)
CONDITIONS TO CONSUMMATION OF THE MERGER. Section 6.1 Conditions to Each Party's Obligations of Sky King and to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and the Sky King Shareholders each party to consummate effect the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or or, where permissible, waiver by Sky King and the Sky King Shareholders) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) Effective Time, of each of the following conditions:
(a) Acquiror the Central Shareholder Approval shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.been obtained;
(b) Acquiror none of Holdings, Allright, Central or Central Sub shall have settled and/or satisfied all outstanding obligations be subject to any order, decree, ruling or liabilities so that as other action of the Closing Acquiror shall have no obligations a court of competent jurisdiction which restrains, delays or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with otherwise prohibits the transactions contemplated by this Agreement.;
(c) the Form S-4 shall have become effective (reflecting pooling-of-interests accounting treatment) under the Securities Act prior to the mailing of the Proxy Statement by Central and no stop order or proceedings seeking a stop order shall have been entered or be pending by the SEC;
(d) the shares of Central Common Stock issuable to the Holdings' stockholders pursuant to the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance; and
(e) any waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated.
Section 6.2 Conditions to the Obligations of Central to Effect the Merger. The obligations of Central and Central Sub to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the following conditions:
(a) The representations and warranties of Acquiror and the Sub Holdings set out forth in this Agreement (without taking into account any qualifications as to materiality contained in such representations and warranties) shall be true and correct in all material respects at when made and as of the time Closing Date (except to the extent that any such representation and warranty had by its terms been made as of a specific date, in which case such 49 51 representation and warranty shall be true and correct as of such date), and Holdings, Allright and the Subsidiaries shall have performed the obligations to be performed by each under this Agreement prior to the Closing Date, except where the failure to be so true and correct, and all failures to perform and comply with such obligations (without taking into account any qualifications as to materiality contained in such representations, warranties, covenants and agreements), does not and will not have, in the aggregate, a Holdings Material Adverse Effect. Any information delivered by Holdings to Central prior to the Effective Time for attachment to the schedules to bring down the representations and warranties contained herein on the Closing Date which supplements or updates any schedule previously delivered shall be used for determining if any representation or warranty set forth in this Agreement is true and correct on the Closing Date and for determining if Central had knowledge of a particular fact as of the Closing as though such representations Date, in each case, for purposes of Central's ability to seek indemnification under Article VIII, provided that the supplemented or updated schedule shall not be used for determining if any representation or warranty set forth in this Agreement shall have been true on the date hereof, and warranties were made at provided further that the updating or supplementing of any schedule shall not limit Central's rights under Section 6.2(a) and as Section 6.2(b) herein. The updating of such timeany schedule shall not be deemed an admission by Holdings that it has breached any representation or warranty contained herein.
(eb) Each There shall not have occurred any Holdings Material Adverse Effect since the date of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(c) Central shall have received a certificate to the effect that the conditions set forth in Section 6.2 (a) and 6.2(b) have been satisfied signed on behalf of Holdings by an officer of Holdings.
(d) Central shall have received an opinion from KPMG Peat Marwick LLP, tax counsel to Central, in form and substance reasonably satisfactory to Central, dated as of the Closing Date, substantially to the effect that, on the basis of facts, representations, and assumptions set forth in such opinion that are consistent with the state of 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 accordingly:
(i) no gain or loss will be recognized by Central, Holdings or Central Sub as a result of the Merger;
(ii) no gain or loss will be recognized by the stockholders of Holdings on the exchange of their Holdings Common Stock for Central Common Stock pursuant to the Merger (except with respect to cash received in lieu of a fractional share interest in Central Common Stock); and
(iii) the tax basis of the Central Common Stock received by shareholders who exchange their Holdings Common Stock for Central Common Stock in the Merger will be the same as the tax basis of Holdings Common Stock surrendered in exchange therefor (reduced by any amount allocable to a fractional share interest for which cash is received). In rendering such opinion, Central's counsel may require and rely upon representations and covenants including those contained in certificates of officers of Central, Central Sub, Holdings and others, including certificates substantially in the form of Exhibits A and B.
(e) Central shall have received an opinion from Skadden, Arps, Slate, Meagxxx & Xlom XXX, counsel to Holdings, in form and substance reasonably satisfactory to Central and its counsel.
(f) The Merger Holdings shall have been approved by Sky King and the Sky King Shareholders delivered to Central Allright's audited financial statements prepared in accordance with GAAP for the provisions of the CBCAfiscal year ended June 30, 1998.
(g) On or before the Closing, the officers and directors of Acquiror Holdings shall have tendered provided to Central a letter from Arthxx Xxxexxxx, xxating their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of belief that Holdings qualifies as a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially "combining company" in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub criteria set forth herein are true in paragraph 46 of Accounting Principles Board Opinion No. 16 ("APB 16") and complete in all material respects as of has not violated the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements criteria set forth herein that are required to be complied with by in paragraph Nos. 47c, 47d and 48c of APB 16 during the Closing.
(l) Sky King shall have completed prior to period extending from two years preceding the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation initiation date of the Merger or and the related transactions.Closing Date, and KPMG Peat Marwick LLP shall have delivered a letter to Central, stating their belief that there are no conditions which exist which would preclude Central from accounting for the Merger as a pooling-of-interests pursuant to APB 16, provided, that if KPMG Peat Marwick LLP does not provide such letter to Central, KPMG Peat Marwick LLP must deliver a letter to Central (and Central shall immediately deliver such letter to Holdings) stating its belief as to what condition exists which would preclude Central from accounting for the Merger as a pooling-of-interests
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 a. Conditions to Obligations of Sky King WCAS VIII and the Sky King ShareholdersNewCo. The obligations obligation of Sky King WCAS VIII and the Sky King Shareholders NewCo to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are is subject to the satisfaction (or waiver by Sky King WCAS VIII and the Sky King ShareholdersNewCo) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions:
(a) Acquiror shall have sold, transferred i. a materially adverse change or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything effect to the contrary contained in the foregoing sentenceassets, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claimsbusiness, liabilities, obligations financial condition, prospects, or results of operations of the Company and demands in connection with the Subsidiaries, taken as a whole, shall not have occurred since the Most Recent Balance Sheet Date;
ii. the Company and the Subsidiaries shall have obtained all of the waivers, permits, consents, approvals or other required authorization to complete the transactions contemplated by this Agreement., except where the failure to obtain such waiver, permit, consent, approval, or other authorization would not reasonably be expected to have a Company Material Adverse Effect;
(d) The iii. the representations and warranties of Acquiror Parent set forth in 2 and the Sub set out in this Agreement 3 shall be true and correct in all material respects at and as of the time Closing Date as if made on the Closing Date, except for changes contemplated or permitted by this Agreement;
iv. each of the Closing as though such representations Company and warranties were made at Parent shall have performed or complied with their respective agreements and covenants required to be performed or complied with under this Agreement as of such time.or prior to the Closing Date;
(e) Each v. no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would prevent consummation of Acquiror and any of the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in transactions contemplated by this Agreement.
(f) The Merger vi. the Company and Parent shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and WCAS VIII a certificate (the Sky King Shareholders an officer's certificate of Acquiror and Sub "Company Certificate") to the effect that all each of the respective representations and warranties conditions specified in clauses (a) through (e) of Acquiror and Sub set forth herein are true and complete this Section a is satisfied in all material respects as of respects;
vii. all applicable waiting periods (and any extensions thereof) under the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King Hart-Xxxxx-Xxxxxx Xxx shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents expired or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have otherwise been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.terminated;
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King and the Sky King Shareholders. 5.1 CONDITIONS TO OBLIGATIONS OF DEVONIAN AND THE principal STOCKHOLDERS.
(a) The obligations of Sky King Devonian and the Sky King Shareholders to consummate the Merger and the other transactions contemplated to Principal Stockholders under this Agreement shall be consummated by it at the Closing are subject to the satisfaction following conditions, any or all of which may be waived in writing by the Principal Stockholders:
(i) Each of Acquiror and Merger Sub shall have in all respects performed and complied with each of the agreements, covenants, stipulations, terms and conditions contained herein and required to be performed or waiver complied with by Sky King Acquiror and the Sky King Shareholders) at Merger Sub on or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each Date. Each of the following conditions:
(a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Merger Sub set out in this Agreement that is already expressly qualified by a reference to materiality shall be true in all respects as so qualified on the date hereof and on the Closing Date, and each of the representations and warranties of Acquiror and Merger Sub in this Agreement that is not so qualified shall be true and correct in all respects on the date hereof and will be true and correct in all material respects at and as of the time Closing Date.
(ii) Acquiror and Merger Sub, as applicable, shall have executed and delivered to Devonian and the Principal Stockholders the documents, and shall have taken the actions set forth within Section 2.2(b) hereof.
(iii) As of the Closing as though such representations and warranties were made at and as of such timeDate, nothing shall have occurred which, individually or in the aggregate, had or is reasonably expected to have a Material Adverse Effect on the Acquiror or Merger Sub.
(eiv) Each of Acquiror and the Sub Devonian shall have complied obtained approval of the Devonian Stockholders in a timely manner accordance each by NRS and in all material respects with the respective covenants and agreements set out in this Agreement.
(fv) The Merger No action, proceeding or investigation shall have been approved by Sky King and instituted or Threatened to set aside the Sky King Shareholders in accordance with transactions provided for herein or to enjoin or prevent the provisions consummation of the CBCA.
(g) On or before transactions contemplated hereby and all required consents and approvals for the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders consummation of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger transactions shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King and the Sky King Shareholders. The obligations of Sky King and the Sky King Shareholders to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions:
(a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran Xxxxxxxxx X. Xxxxx and James Roberts Xxxxx Xxxxxxx substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx the terms contained within Exhibit 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
6.2 Conditions to Acquiror's and the Sub's Obligations. The obligations of Acquiror and the Sub to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Acquiror) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions:
(a) On or before the Closing, Sky King shall have secured general releases from each of its directors, officers, consultants, employees and shareholders agreeing to: (i) release Sky King, Acquiror and Sub from any and all claims, liabilities, obligations and demands; (ii) terminate any employment agreements; and (iii) terminate any shareholder agreements.
(b) On or before the Closing, Sky King shall have secured the resignation of each of its directors and officers except Xxxxxx Xxxx who will remain the President of Sky King.
(c) Acquiror shall have executed employment agreements with Xxxxxxxxx X. Xxxxx and Xxxxx Xxxxxxx substantially in accordance with the terms contained within Exhibit 2.2(b)(xii).
(d) No Sky King Shareholder shall have filed with Sky King, prior to the Sky King shareholder meeting at which a vote is to be taken with respect to a proposal to approve this Agreement, a written notice of intent to demand payment for his shares if the proposed action is effectuated, as required by Section 33-861 of the CBCA in order for such shareholder to perfect the right to dissent from such proposed action.
(e) The representations and warranties of Sky King and the Sky King Shareholders set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(f) Sky King and the Sky King Shareholders shall have complied in a timely manner and in all material respects with its covenants and agreements set out in this Agreement.
(g) There shall be delivered to Acquiror and Sub an officer's certificate of Sky King to the effect that all of the representations and warranties of Sky King set forth herein are true and complete in all respects as of the Closing, and that Sky King has complied in all material respects with covenants and agreements set forth herein required to be complied with by the Closing, and there shall be delivered to Acquiror and Sub a certificate signed by the Sky King Shareholders to the effect that the representations and warranties of the Sky King Shareholders set forth herein are true and correct in all material respects and that the Sky King Shareholders have complied in all material respects with their covenants and agreements set forth herein required to be complied with by Closing.
(h) Sky King and the Sky King Shareholders shall have executed and delivered the Escrow Agreement to Acquiror and the Escrow Agent.
(i) Acquiror and Sub shall have completed prior to the Closing, to their satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, businesses and prospects of Sky King.
(j) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(k) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
(l) Acquiror's and Sub's Board of Directors, and shareholders to the extent necessary, shall have approved the Merger in accordance with the DGCL.
(m) The Board of Directors and Sky King Shareholders shall have approved the Merger in accordance with the CBCA.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King and the Sky King ShareholdersSECTION 7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The respective obligations of Sky King CBOT, FVNB and the Sky King Shareholders Acquisition Sub to consummate effect the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and of the Sky King Shareholders) at or following conditions prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditionsEffective Time:
(a) Acquiror shall have sold, transferred or otherwise disposed the receipt of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred required regulatory approvals in connection with this transactioneach of the Mergers, those in connection with the PortaCom Transaction and those in the ordinary course, which approvals shall not have imposed any condition or requirement which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount reasonable judgment of the PortaCom Advances party or parties affected by such condition or requirement would adversely impact in a material respect the economic or business benefits to PortaCom on or before the date such party of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this AgreementAgreement or otherwise would in the reasonable judgment of such party be so burdensome as to render reasonably inadvisable the consummation of the Mergers, or any of them, and the expiration of any applicable waiting periods with respect thereto;
(b) the Closing will not violate any injunction, order or decree of any court or governmental body having competent jurisdiction; and
(c) the holders of at least a majority of the shares of issued and outstanding capital stock of CBOT shall have authorized and approved the Merger and this Agreement and CBOT shall have delivered evidence of same to FVNB in form and substance reasonably satisfactory to FVNB.
SECTION 7.2 CONDITIONS TO THE OBLIGATIONS OF FVNB AND ACQUISITION SUB TO EFFECT THE MERGER. The obligations of FVNB and Acquisition Sub to effect the Merger are subject to the satisfaction or waiver in writing of the following conditions prior to the Effective Time:
(da) The all representations and warranties of Acquiror and the Sub set out in this Agreement CBOT shall be true and correct in all material respects (except for representations and warranties qualified by materiality or "Material Adverse Effect", which shall be true and correct in all respects) as of the date hereof and at and as of the time of the Closing as though such Closing, except for representations and warranties were made at as of a specific date which shall be true and correct (except for representations and warranties qualified by materiality or "Material Adverse Effect", which shall be true and correct in all respects) as of such date, with the same force and effect as though made on and as of such time.the Closing;
(eb) Each of Acquiror and the Sub CBOT shall have complied performed in a timely manner all material respects all obligations and agreements and in all material respects complied with the respective all covenants and agreements set out conditions, contained in this Agreement.Agreement to be performed or complied with by it or them prior to the Effective Time;
(c) there shall not have occurred a Material Adverse Effect with respect to CBOT or any of its subsidiaries;
(d) FVNB shall have received the opinions of counsel to CBOT reasonably acceptable to FVNB as to the matters set forth on Exhibit B attached hereto;
(e) the number of shareholders of CBOT exercising their dissenters rights shall not have exceeded ten percent (10%) of the total issued and outstanding shares (as of the Effective Time) of CBOT Common Stock;
(f) The Merger FVNB shall have been approved by Sky King received a duly executed Noncompetition Agreement in substantially the form of Exhibit C attached hereto from each of Roger D. Lawrence, Joe Boaz, Debbie Sprott and Russell Barnett the Sky King Shareholders in accordance with texxx xx xxxxx xxxx bx xxxxxxtexx xxxx xxx Xetter xx Xxxxxx xxxxd August 27, 1998 between the provisions of the CBCA.parties hereto and Roger D. Lawrence;
(g) On or before the Closing, the officers and directors aggregate principal amount of Acquiror all CXXX Xxxxxxxxxxxx shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).not exceed $2,750,000;
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 each of the Code.Options shall have been exercised in full, or, to the extent not so exercised, the holders thereof shall have waived and terminated in writing, in form and substance satisfactory to FVNB, all of their respective rights thereunder, without the payment of any consideration therefor; and
(i) Acquiror FVNB shall enter into Employment Agreements with each have received certificates dated the Closing executed by the President of Frederick A. Moran CBOT, certifying in such reasonable detail as FVNB may reasonably request, to the effect described in Sections 7.2(a), (b), (c) and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii(e) and Section 7.1(c).
(j) Acquiror shall have executed and delivered SECTION 7.3 CONDITIONS TO THE OBLIGATIONS OF CBOT TO EFFECT THE MERGER. The obligations of CBOT to effect the Escrow Agreement Merger are subject to Sky King and the Escrow Agent.satisfaction or waiver of the following conditions prior to the Effective Time:
(ka) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are FVNB shall be true and complete correct in all material respects as of the date hereof and at and as of the Closing, with the same force and effect as though made on and as of the Acquiror Closing;
(b) FVNB and Acquisition Sub shall have complied performed in all material respects all obligations and agreements and in all material respects complied with their all covenants and agreements set forth herein that are required conditions contained in this Agreement to be performed or complied with by either of them prior to the ClosingEffective Time;
(c) there shall not have occurred a Material Adverse Effect with respect to FVNB or any of its subsidiaries which prevents the payment of the Merger Consideration.
(ld) Sky King CBOT shall have completed prior received the opinions of counsel to FVNB reasonably acceptable to CBOT as to the matters set forth on Exhibit D attached hereto;
(e) CBOT shall have received certificates dated the Closing, executed by appropriate officers of FVNB and Acquisition Sub, respectively, certifying, in such detail as CBOT may reasonably request, to its satisfactionthe effect described in Sections 7.3(a), a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business (b) and prospects of Acquiror.(c) ; and
(mf) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents CBOT shall have received an opinion from an investment banker or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) bank consulting firm reasonably acceptable to complete CBOT to the effect that the Merger shall have been securedConsideration is fair to shareholders of CBOT from a financial point of view.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
Samples: Merger Agreement (FVNB Corp)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King Rare Telephony and the Sky King Rare Telephony Shareholders. The obligations of Sky King Rare Telephony and the Sky King Rare Telephony Shareholders to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King Rare Telephony and the Sky King Rare Telephony Shareholders) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions:
(a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(eb) Each The approval of the Merger by the Board of Directors of Rare Telephony and the Rare Telephony Shareholders in accordance with the provisions of the NRS shall not have been revoked or altered in any way.
(c) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
6.2 Conditions to Acquiror's and the Sub's Obligations. The obligations of Acquiror and the Sub to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Acquiror) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions:
(a) On or before the Closing, Rare Telephony shall have secured general releases from each of its directors, officers, consultants, employees and shareholders agreeing to (and to the extent requested by the Acquiror the directors, officers, and employees of Cash Back): (i) release Rare Telephony, Cash Back, and Free from any and all claims, liabilities, obligations and demands; (ii) terminate any employment agreements with Rare Telephony, Cash Back, or Free; and (iii) terminate any shareholder agreements.
(b) On or before the Closing, each of the Rare Companies shall have secured the resignation of each of its directors and officers to the extent requested by Acquiror.
(c) No Rare Telephony Shareholder shall have filed with Rare Telephony, prior to the Rare Telephony shareholder meeting at which a vote is to be taken with respect to a proposal to approve this Agreement, a written notice of intent to demand payment for his shares if the proposed action is effectuated, as required by the NRS in order for such shareholder to perfect the right to dissent from such proposed action.
(d) The representations and warranties of Rare Telephony and the Rare Telephony Shareholders set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Rare Telephony and the Rare Telephony Shareholders shall have complied in a timely manner and in all material respects with the respective its covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King Acquiror and the Sky King Shareholders Sub an officer's certificate of Acquiror and Sub Rare Telephony to the effect that all of the respective representations and warranties of Acquiror and Sub Rare Telephony set forth herein are true and complete in all material respects as of the Closing, and that Rare Telephony has complied in all material respects with covenants and agreements set forth herein required to be complied with by the Closing, and there shall be delivered to Acquiror and Sub a certificate signed by the Rare Telephony Shareholders to the effect that the representations and warranties of the Rare Telephony Shareholders set forth herein are true and correct in all material respects and that the Rare Telephony Shareholders have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(lg) Sky King Rare Telephony and the Rare Telephony Shareholders shall have executed and delivered the Escrow Agreement to Acquiror and the Escrow Agent.
(h) Acquiror and Sub shall have completed prior to the Closing, to its their satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business businesses and prospects of AcquirorRare Telephony.
(mi) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(nj) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
(k) Acquiror's and Sub's Board of Directors, and shareholders to the extent necessary, shall have approved the Merger in accordance with the DGCL.
(l) The approval of the Merger by the Board of Directors of Rare Telephony and the Rare Telephony Shareholders in accordance with the provisions of the NRS shall not have been revoked or altered in any way.
(m) The Rare Telephony and Cash Back employees and consultants listed on Schedule 6.2(m) have terminated their existing employment agreements or consultant agreements, as the case may be, and
(1) Armando Medina, Timothy Graxx, Xxxxxx Xxuz, Xxxxxxxxxxx LxXxxxxx, Xlbxxxx Xxxxx, Xxxxx Xantx Xxxxa, Xxxx Xxxxxr, and Williams Xxxx Xxxxxxs shall xxxx xxxxxxx xxxx xxw employment agreements with Sub in the form attached hereto as Exhibit 6.2(m)(1);
(2) Rosaria Ventola and Toni Axx Xxxxxxxx xxxxl havx xxxxxxx xxxx xxw employment agreements with Sub in the form attached hereto as Exhibit 6.2(m)(2)
(3) Arthur Scuttaro, Thomas Vraxxx, xxx Xxxxrt Xxxxxxx xxxxl have exxxxxx xxxx xxw employment agreements with Sub in the form attached hereto as Exhibit 6.2(m)(3);
(4) Thomas Salzano shall have xxxxxxx xxxx a new consulting agreement with Sub in the form attached hereto as Exhibit 6.2(m)(4); and
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King the Company and the Sky King Shareholders. The obligations of Sky King and the Sky King Shareholders to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions:Principal Shareholder.
(a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror Parent and the Merger Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time., except that the representations and warranties set forth in Section 4.4 shall be updated as provided in Section 5.13(b);(c) Notwithstanding anything contained herein to the contrary, Parent shall be expressly permitted to take any and all actions reasonably necessary to consummate the following activities:
(eb) Each of Acquiror Parent and the Merger Sub shall have complied in a timely manner performed and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants all covenants, conditions, obligations and agreements required by this Agreement to be performed or complied with by Parent and Merger Sub, respectively, on or prior to the Closing Date;
(c) Parent shall have delivered to the Company an officer’s certificate of each of Parent and Merger Sub to the effect that the conditions set forth herein that are in Section 6.1(a) and (b) have been satisfied;
(d) Parent shall have delivered to the Company Shareholders any certificates evidencing the Parent Shares in accordance with Section 2.2(b)(i);
(e) Parent shall have filed all reports and other documents required to be complied with filed by Parent under the U.S. federal securities laws through the Closing Date;
(f) Parent shall have maintained its status as a Company whose common stock is quoted on the Over-the-Counter Bulletin Board and no reason shall exist as to why such status shall not continue immediately following the Closing.;
(lg) Sky King Parent shall have completed prior consummated the Trident Financing and loaned a portion of the net proceeds of that financing to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business Company upon mutually acceptable terms and prospects of Acquiror.conditions;
(mh) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger At least $1,000,000 shall have been secured.deposit into an escrow account for the benefit of Parent in connection with the Private Placement;
(ni) No statute, rule, regulation, executive order, decree, injunction or restraining order Parent shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts adopted the consummation of 2006 Stock Plan; and
(j) The Company Shareholders shall have approved the Merger or in accordance with the related transactionsDGCL.
Appears in 1 contract
Samples: Merger Agreement (Zone Mining LTD)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King Graphite and the Sky King Principal Shareholders. The obligations of Sky King Graphite and the Sky King Principal Shareholders to consummate the Merger and the other transactions contemplated to shall be consummated by it at the Closing are subject to the satisfaction (fulfillment, or written waiver by Sky King and Graphite or the Sky King Principal Shareholders) , at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) Closing, of each of the following conditions:
(a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror BPK and the Merger Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time., except that the representations and warranties set forth in Section 4.4 shall be updated as provided in Section 5.15(b);
(eb) Each of Acquiror BPK and the Merger Sub shall have complied in a timely manner performed and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants all covenants, conditions, obligations and agreements set forth herein that are required by this Agreement to be performed or complied with by BPK and Merger Sub, respectively, on or prior to the ClosingClosing Date;
(c) BPK shall have delivered to Graphite an officer's certificate of each of BPK and Merger Sub to the effect that the conditions set forth in Section 6.1(a) and (b) have been satisfied;
(d) BPK shall have delivered to Graphite any certificates evidencing BPK Common Shares or BPK Preferred Shares in accordance with Section 2.2(b)(i).
(le) Sky King BPK shall have completed delivered to Graphite at the Closing a fully executed irrevocable proxy from BP Investment Group LLC ("BPIG"), who currently holds 27,692,305 shares of BPK Common Stock, in form and substance acceptable to Graphite and its counsel, constituting and appointing Harold T. King proxy, with full power of substitution in order to vxxx xxx xxxxxx of BPK's common stock registered in BPIG's name on BPK's books and records as of the date hereof in favor of either a reverse stock split of the issued and outstanding shares of BPK Common Stock or increase in the number of shares of BPK Common Stock BPK is authorized to issue and in favor of establishing options for management, advisors, consultants and persons management may designate (the "Management Options"), which in the aggregate shall represent the right to purchase the number of shares of BPK Common Stock that, when and if all are exercised, would result in the issuance of the number of shares of BPK Common Shares equivalent to 20,000,000 shares of BPK Common Stock (the "Management Shares"), or that number of Management Shares resulting from a reverse split of the issued and outstanding shares of BPK Common Stock as and if the Management Shares were issued prior to the Closing, to its satisfaction, a due diligence review reverse split of BPK Common Stock at any meeting of the financial condition, results stockholders of operations, properties, assets, liabilities, business and prospects of AcquirorBPK to consider such actions.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
Samples: Merger Agreement (BPK Resources Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 SECTION 10.1 Conditions to Obligations of Sky King and Each Party's Obligation to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and the Sky King Shareholders each Party to consummate effect the Merger and the other transactions contemplated to shall be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each Effective Time of the following conditions:
(a) Acquiror The directors and officers of Lahaina shall have sold, transferred or otherwise disposed resign and new directors and officers shall be elected. The new directors and officers of all of its present assets Lahaina shall be as set forth in Sections 2.5 and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 19992.6 hereof.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that Accent and each of Smytx xxx Sullxxxx xxxll enter into a consulting agreement substantially in the form attached as Exhibit D hereto. 38 40
(c) Certain payables of Lahaina accrued as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of be paid at the Closing, then on or before including but not limited to all fees incurred by Paul, Hastings, Janoxxxx & Xalkxx XXX in the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each course of its directors and officers agreeing to release Acquiror from any and all claimsrepresentation of Lahaina, liabilities, obligations and demands in connection with the transactions contemplated by this Agreementas set forth on Schedule 10.1 hereto.
(d) The representations Accent shall enter into a Shareholders' Agreement with the Shareholders under which the Shareholders agree to vote their stock in favor of any proposed Merger or Reorganization, including any and warranties of Acquiror all related activities and the Sub set out undertakings reasonably required in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such timeconnection therewith.
(e) Each Accent shall enter into a Stock Pledge Agreement with each of Acquiror Scotx xxx Julix Xxxxxxx, Xxanx Xxxxxxx, Xxel, Xxxxxxx, Xxcent Holdings, Inc., International, Sherxx Xxxxxxxxxx, Xxn Xxxxxxxx xxx/or any other Persons who have an interest in the Allocated Shares, and whose interest is subject to cancellation pursuant to Section 4.1 hereof, (for purposes of this section only, the Sub shall have complied "PLEDGORS") under which the Pledgors agree to forfeit their rights under the pledged stock in the event a timely manner and default in all material respects with the respective covenants and agreements set out in this performance of any obligation or any amount due or owing from the Pledgor under one or more subject documents, including, but not limited to, under the Shareholders' Agreement.
(f) The Parties shall furnish the other with a Secretary's certificate certifying to the due adoption of the resolutions relating to the Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as actions contemplated by this Agreement) , which resolutions shall be attached to complete the Merger shall have been securedappropriate Secretary's certificate.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King and the Sky King Shareholders7.1 CONDITIONS TO THE OBLIGATIONS OF PROVANT AND ACQUISITION. The obligations of Sky King Provant and the Sky King Shareholders Acquisition to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (at the Closing, or waiver by Sky King and the Sky King Shareholders) at Provant in writing, in whole or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) part, of each of the following conditions:
(a) Acquiror The IPO and each of the Additional Mergers shall have sold, transferred or otherwise disposed of all of its present assets and shall as of been completed at the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999same time.
(b) Acquiror The Financial Condition shall have settled and/or been satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount good faith determination of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A)Provant.
(c) On Each of the representations, warranties, agreements and covenants of the Company and the Stockholders (giving effect to the Disclosure Schedule, but not to any Company Disclosure Supplement) shall be true and correct as of, and shall not have been violated in any respect at, the Closing as though made on and as of the Closing, except for (i) representations, warranties, agreements and covenants which make reference to a specific date (including the date of this Agreement), which need only be true and correct as of the specified date, and (ii) failures of representations or warranties to be true and correct as of the Closing solely on account of matters arising between the date hereof and the Effective Time in the ordinary course of the 40 41 Company's business, if and to the extent such matters are consistent with past practice of the Company and are not materially adverse to the Company, either singly or in the aggregate; the Company and the Stockholders shall, on or before the Closing, Acquiror have performed all of their respective obligations under this Agreement which by the terms hereof are to be performed on or before the Closing; and there shall have secured general releases delivered to Provant and Acquisition a certificate signed by the President of the Company on behalf of and in the name of the Company and by the Stockholders dated as of the date of the Closing to the foregoing effect.
(d) The Merger and this Agreement shall have been approved by the requisite vote of the stockholders of the Company, and not more than 5.0% of the Shares shall constitute Dissenting Shares.
(e) No action or proceeding by or before any court or other governmental body shall have been instituted by any governmental body or other person or entity or threatened in writing by any governmental body which seeks to restrain, prohibit or invalidate the transactions contemplated by this Agreement or which would materially adversely affect the right of the Surviving Corporation, as a subsidiary of Provant, to conduct the business of the Company as presently conducted by the Company or which claims damages from each Provant with respect to the transactions contemplated hereby.
(f) Provant and Acquisition shall have received the opinion of counsel to the Company, dated the date of the Closing and in form and substance reasonably satisfactory to Provant and its directors counsel, substantially to the effect set forth on Exhibit 7 (subject to qualifications and officers agreeing to release Acquiror from any assumptions customary in transactions such as the Merger), which opinion provides that it may be relied upon by the Underwriter.
(g) All proceedings taken by the Company and all claims, liabilities, obligations instruments executed and demands delivered by the Company prior to the date of the Closing in connection with the transactions herein contemplated shall be satisfactory in form and substance to counsel for Provant acting reasonably.
(h) No statute, rule or regulation shall have been enacted or promulgated which makes illegal or prohibits consummation of the transactions contemplated hereby or which materially and adversely affects the ability of the Surviving Corporation, as a subsidiary of Provant, to conduct the business of the Company as presently conducted by the Company.
(i) The Stockholders shall have executed and delivered to Provant the Employment Contracts, the Non-Competition and Non-Disclosure Agreements, and the Investment Letters. 41 42 (j) The Company shall have delivered to Provant and Acquisition a certificate of its Secretary certifying as to requisite corporate or other action authorizing the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the incumbency of officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closingdirectors, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review status of record ownership of the financial condition, results of operations, properties, assets, liabilities, business and prospects of AcquirorShares.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
Samples: Merger Agreement (Provant Inc)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 7.1 Conditions to Obligations of Sky King and Each Party's Obligation to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and the Sky King Shareholders each party to consummate the Merger and to take the other transactions contemplated actions required to be consummated taken by it at the Closing are shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by both the Company and Acquiror, in whole or in part):
(a) All necessary approvals under federal and state securities laws and other authorizations relating to the issuance of the Acquiror Stock to be issued to Company shareholders in connection with the Merger shall have been received.
(b) This Agreement, the Merger and the other actions contemplated hereby shall have been approved by the requisite vote of the shareholders of the Company under applicable law.
(c) A duly authorized officer of the Company and the Acquiror shall have executed and delivered a certificate setting forth the Exchange Ratio and a description of the calculation thereof, including without limitation, the closing price on the NASDAQ National Market of the Acquiror Common Stock for the twenty (20) consecutive trading days ending three (3) business days prior to Closing and the liquidation preference of the Series B Preferred Stock.
7.2 Additional Conditions to Acquiror's and Merger Sub's Obligation to Consummate the Merger. Acquiror's and Merger Sub's obligations to consummate the Merger and to take the other actions required to be taken by Acquiror and Merger Sub at the Closing is subject to the satisfaction of each of the following conditions (any of which may be waived by Acquiror, in whole or waiver by Sky King in part):
(a) Acquiror's Board of Directors shall have ratified or approved the execution of this Agreement and the Sky King Shareholdersother Transactional Agreements by Acquiror and shall have approved the consummation of the Transactions.
(b) In addition to the documents required to be received under this Section 7.2, Acquiror shall also have received the following documents:
(i) the opinion letter from Gray Xxxy Xxxx & Xreidenrich, counsel to the Company, dated the date hereof, in the form attached as Exhibit D;
(ii) a certificate, duly executed by the Company, certifying that (A) each of the representations and warranties made by the Company in this Agreement and in the other Transactional Agreements is accurate as of the date hereof , (B) each of the covenants and obligations that the Company is required to have complied with or performed pursuant to this Agreement or any of the other Transactional Agreements at or prior to the Closing has been duly complied with and performed in all respects, and (or at such other time prior thereto as may be expressly provided in this AgreementC) of each of the following conditions:conditions set forth in Section 7.2 has been satisfied in all respects;
(aiii) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger Material Consents shall have been approved obtained by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.Company;
(giv) On or before the Closingall authorizations, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closingconsents, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federalor notifications to any third party (excluding Material Consents), state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts Company Contracts in connection with the consummation of the Merger or any of the related transactionstransactions contemplated hereby shall have occurred or been obtained;
(v) executed copies of investor representation letters from each Shareholder, in the form previously provided to the Company; and
(vi) copies of resolutions of the Company, certified by the Secretary of the Company, authorizing the execution, delivery and performance of the Transactional Agreements and the Transactions, and copies of resolutions of the meeting of shareholders of the Company (or written consent in lieu thereof), certified by the Secretary of the Company, authorizing the execution, delivery and performance of the Transactional Agreements and the Transactions.
(c) Josexx Xxxxx xxxll have delivered an assignment of proprietary information and inventions agreement and a release to the Company, in the forms acceptable to the Acquiror in its sole discretion.
(d) Each Person (other than Acquiror and Merger Sub) shall have executed and delivered all Transactional Agreements to which it is a party.
(e) The holders of no more than one percent (1%) of the outstanding shares of Company Stock shall have demanded and not lost or withdrawn, or shall be eligible to demand, dissenters' rights.
7.3 Additional Conditions to the Company's Obligation to Consummate the Merger. The Company's obligation to consummate the Merger and to take the other actions required to be taken by the Company at the Closing shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by the Company, in whole or in part):
(a) The Company shall have received the following documents:
(i) the opinion letter from Morrxxxx & Xoerxxxx XXX, counsel to Acquiror and Merger Sub, dated the date hereof, in the form attached as Exhibit E;
(ii) a certificate, duly executed by Acquiror, certifying that (A) each of the representations and warranties made by Acquiror in this Agreement and in the other Transactional Agreements is accurate in all respects as of the date hereof, (B) each of the covenants and obligations that Acquiror is required to have complied with or performed pursuant to this Agreement or any of the other Transactional Agreements at or prior to the Closing has been duly complied with and performed in all respects, and (C) each of the conditions set forth in Section 7.3 has been satisfied in all respects.
(b) Subject to the terms and conditions of this Agreement, each of Acquiror and Merger Sub shall have executed and delivered all Transactional Agreements to which it is a party.
(c) Subject to Section 6.3, all legal costs and expenses incurred in connection with the Transactional Agreements and the transactions contemplated thereby shall be paid to GCWF at the Closing.
(d) All shares of Series A Preferred Stock shall have been converted to shares of Common Stock.
Appears in 1 contract
Samples: Merger Agreement (Informatica Corp)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 6.01 Conditions to Obligations of Sky King and Each Party's Obligation to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and the Sky King Shareholders each party to consummate effect the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) at or waiver, where permissible, prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each Effective Time, of the following conditions:
(a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this This Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders affirmative vote of the shareholders of QDI by the requisite vote in accordance with the provisions of the CBCA.applicable law;
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(nb) No statute, rule, regulation, executive order, decree, injunction or restraining other order (whether temporary, preliminary or permanent), shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts which is in effect and has the effect of prohibiting the consummation of the Merger Merger; provided, however, 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;
(c) This Agreement shall have been approved by the related transactionsBoard of Directors of QDI and the affirmative vote of the shareholders of QDI by the requisite vote in accordance with applicable law, if required, and by the Board of Directors of United by resolution in accordance with applicable law. Each of the consents and resolutions shall have been obtained and set forth on Exhibits 6.01(c), 6.01(c)(i) and 6.01(c)(ii) annexed hereto.
(d) QDI, on or before the Effective Time, shall have completed the issuance of its Convertible Debentures ("Debentures") in the face amount of $1,000,000 to , a Colorado limited liability company, upon the terms and conditions set forth in the Subscription Agreement and other documentation relating to the issuance of the Debentures, and a minimum of $400,000 shall have been funded. Subject to and upon the Effective Time of this Agreement, United agrees to assume the liabilities and obligation to pay principal and interest on the Debentures. On or prior to the Effective Time, QDI shall secure, in writing, from all of the holders of the Debentures, their consent to United's assumption of QDI's liability and obligations under the Debentures.
(e) A Consulting Agreement between United and Xxxxx X. Xxxxxx Xx. has been executed, a copy of which is annexed to this Agreement as Exhibit 6.01(e). This Consulting Agreement shall become an obligation of the Surviving Corporation.
(f) A Consulting Agreement between QDI and Xxxxxxx X. Xxxxxxxxxxx has been executed, a copy of which is annexed to this Agreement as Exhibit 6.01(f). This Consulting Agreement shall become an obligation of the Surviving Corporation.
(g) QDI shall deliver the legal opinion of its general counsel, substantially in the form annexed hereto as Exhibit 6.01(g) and United shall deliver the legal opinion of its counsel, substantially in the form annexed hereto as Exhibit 6.01(g)(1).
(h) Each party shall have completed its due diligence review and notified the other in writing of the satisfaction or removal of the due diligence review condition in accordance with Article 5.03 of this Agreement.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King P2i and the Sky King ShareholdersP2i Newspaper. The obligations of Sky King P2i and the Sky King Shareholders P2i Newspaper to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King P2i and the Sky King ShareholdersP2i Newspaper) at or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each of the following conditions:
(a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub Newco set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(eb) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement and, in the event that P2i or the Acquiror and Newco produce schedules or exhibits subsequent to the execution of this Agreement, such schedules or exhibits must be reasonably acceptable to the other party.
(fc) The Merger shall have been approved by Sky King and the Sky King Shareholders Newco in accordance with the provisions of the CBCADGCL. The Merger shall have been approved by Acquiror's stockholders in accordance with the CGCL. The Board of Directors of Newco and Acquiror shall have approved the execution of this Agreement and the Merger thereby.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(kd) There shall be delivered to Sky King P2i and the Sky King Shareholders P2i Newspaper an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have has complied in all material respects with their the covenants and agreements set forth herein that are required to be complied with by the Closing.
(le) Sky King There shall have completed prior be delivered to P2i and P2i Newspaper an officer's certificate of Newco to the effect that all of the representations and warranties of Newco set forth herein are true and complete in all material respects as of the Closing, and Newco has complied in all material respects with the covenants and agreements set forth herein that are required to its satisfaction, be complied with by the Closing. There shall be delivered to P2i and P2i Newspaper a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects chart detailing all of Acquiror's outstanding shares, options and warrants.
(mf) There shall be delivered to P2i and P2i Newspaper an opinion of counsel for Acquiror and Newco in the form of Exhibit 6.1(f) attached hereto and made a part hereof.
(g) All director, shareholderstockholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(nh) P2i shall have received advice reasonably acceptable to it that the Merger transaction will not result in a taxable event to the stockholders of P2i.
(i) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
(j) Acquiror shall have or be capable of acquiring reasonable amounts of director and officer liability insurance.
(k) Acquiror and P2i shall have entered into a definitive agreement for the purchase of 18% of P2i by Acquiror for an aggregate purchase price of $1,100,000. Such agreement shall be in form and substance reasonably acceptable to Acquiror and P2i.
Appears in 1 contract
Samples: Merger Agreement (Protosource Corp)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Conditions to Obligations of Sky King and the Sky King Shareholders. 7.1 The obligations of Sky King BridgeStreet and the Sky King Shareholders Acquisition to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (at the Closing, or waiver by Sky King and the Sky King Shareholders) at BridgeStreet in writing, in whole or prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) part, of each of the following conditions:
(a) Acquiror BridgeStreet and Acquisition shall have soldreceived the opinion of counsel to each Company, transferred or otherwise disposed of all of its present assets and shall as dated the date of the Closing have assets consisting of at least: (i) $1 million and in cash or other liquid assets; form and (ii) notes receivable of not less than $4 million with maturities substance satisfactory to the BridgeStreet and its counsel, substantially to the effect set forth on or before 1 August, 1999Exhibit 5.
(b) Acquiror shall have settled and/or satisfied All proceedings taken by each Company and all outstanding obligations or liabilities so that as instruments executed and delivered by the Company prior to the date of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction transactions herein contemplated shall be satisfactory in form and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything substance to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A)counsel for BridgeStreet acting reasonably.
(c) On The Stockholder shall have delivered to BridgeStreet the Employment Agreement executed by Richxxx Xxxxx.
(d) The Stockholder shall have executed and delivered to BridgeStreet a letter agreement substantially in the form attached hereto as Exhibit 6 (the "Investment Representation Letter").
(e) Each Company shall have delivered to BridgeStreet and Acquisition a certificate of its Secretary certifying as to requisite corporate or other action authorizing the transactions contemplated by this Agreement, the incumbency of officers and directors, and the status of record ownership of each Company's stockholders.
(f) The Companies shall have delivered to BridgeStreet a combined balance sheet prepared in accordance with GAAP which reflects that as of December 31, 1996, the Companies had an aggregate tangible net book value of at least One Hundred Fifty Thousand Dollars ($150,000.00).
(g) The Companies shall have delivered to BridgeStreet a pro forma combined income statement for the fiscal year ended December 31, 1997, reasonably satisfactory to BridgeStreet in terms of form, assumptions and substance, which projects that, for such fiscal year, the Companies will have combined revenues of at least Six Million Dollars ($6,000,000.00) and net income before taxes of at least Eight Hundred Thousand Dollars ($800,000.00).
(h) Each Company shall have delivered to BridgeStreet such other certificates, documents and opinions as BridgeStreet and its counsel shall reasonably require.
7.2 The obligation of each Company to consummate this Agreement is subject to the satisfaction at the Closing, Acquiror or waiver by each Company in writing, in whole or in part, of each of the following conditions:
(a) The Companies shall have secured general releases from each received the opinion, dated the date of the Closing and in form and substance satisfactory to the Companies and its directors counsel, of Nuttxx, XxClxxxxx & Xish, LLP, counsel to BridgeStreet, substantially to the effect set forth on Exhibit 7.
(b) All proceedings taken by BridgeStreet and officers agreeing to release Acquiror from any Acquisition and all claims, liabilities, obligations instruments executed and demands delivered by BridgeStreet and Acquisition prior to the date of the Closing in connection with the transactions herein contemplated shall be satisfactory in form and substance to counsel for the Companies, acting reasonably.
(c) BridgeStreet and Acquisition shall have delivered to the Companies a certificate of its Secretary, certifying as to requisite corporate or other action authorizing the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders in accordance with the provisions of the CBCA.
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts the consummation of the Merger or the related transactions.
Appears in 1 contract
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 6.01 Conditions to Obligations of Sky King and Each Party's Obligation to Effect the Sky King ShareholdersMerger. The respective obligations of Sky King and the Sky King Shareholders each party to consummate effect the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) at or waiver, where permissible, prior to the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) of each Effective Time, of the following conditions:
(a) Acquiror shall have sold, transferred or otherwise disposed of all of its present assets and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this This Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders affirmative vote of the shareholders of Agents by the requisite vote in accordance with the provisions of the CBCA.applicable law;
(g) On or before the Closing, the officers and directors of Acquiror shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing).
(h) Sky King and the Sky King Shareholders shall be reasonably satisfied that the Merger results in a tax-free reorganization under Section 368 of the Code.
(i) Acquiror shall enter into Employment Agreements with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(nb) No statute, rule, regulation, executive order, decree, injunction or restraining other order (whether temporary, preliminary or permanent), shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts which is in effect and has the effect of prohibiting the consummation of the Merger Merger; provided, however, 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;
(c) This Agreement shall have been approved by the related transactionsBoard of Directors of Agents and the affirmative vote of the shareholders of Agents by the requisite vote in accordance with applicable law, if required, and by the Board of Directors of Saratoga by resolution in accordance with applicable law. Each of the consents and resolutions shall have been obtained and set forth on Exhibits 6.01(c), 6.01(c)(i) and 6.01(c)(ii) annexed hereto.
(d) Agents, on or before the Effective Time, shall have completed the issuance of its Convertible Debentures ("Debentures") in the face amount of $1,000,000 to ____________________, a Colorado limited liability company, upon the terms and conditions set forth in the Subscription Agreement and other documentation relating to the issuance of the Debentures. Subject to and upon the Effective Time of this Agreement, Saratoga agrees to assume the liabilities and obligation to pay principal and interest on the Debentures. On or prior to the Effective Time, Agents shall secure, in writing, from all of the holders of the Debentures, their consent to Saratoga's assumption of Agents' liability and obligations under the Debentures.
(e) On or prior to the Effective Date, Saratoga shall have completed the spin-off of its wholly-owned subsidiary, Saratoga Telecom Corp. ("STC") to its shareholders of record at a time effective prior to the issuance of shares to Agents shareholders set forth in Article 1.06 of this Agreement. Approximately $500,000 of Saratoga's obligation to its debenture holders shall be transferred to STC on or prior to the effective date of the spin-off.
(f) A Consulting Agreement between Saratoga and Coast Northwest Management LLC or its principals shall have been executed, a copy of which is annexed to this Agreement as Exhibit 6.01(f). This Consulting Agreement shall become an obligation of the Surviving Corporation.
(g) Effective with and subject to the closing of this Agreement set forth in Article 7.01
Appears in 1 contract
Samples: Merger Agreement (Saratoga International Holdings Corp)
CONDITIONS TO CONSUMMATION OF THE MERGER. 6.1 Section 6.01 (a) Conditions to the Obligations of Sky King the Company and Purchaser. The respective obligations of Purchaser and the Sky King Shareholders. The obligations of Sky King and the Sky King Shareholders Company to consummate the Merger and the other transactions contemplated to be consummated by it at the Closing are subject to the satisfaction (or waiver by Sky King and the Sky King Shareholders) satisfaction, at or prior to before the Closing (or at such other time prior thereto as may be expressly provided in this Agreement) Effective Time, of each of the following conditions:
(ai) Acquiror The holders of a majority of the outstanding Common Shares shall have soldadopted and approved this Agreement, transferred or otherwise disposed of all of its present assets the Merger and shall as of the Closing have assets consisting of at least: (i) $1 million in cash or other liquid assets; and (ii) notes receivable of not less than $4 million with maturities on or before 1 August, 1999.
(b) Acquiror shall have settled and/or satisfied all outstanding obligations or liabilities so that as of the Closing Acquiror shall have no obligations or liabilities except trade payables incurred in connection with this transaction, those in connection with the PortaCom Transaction and those in the ordinary course, which in the aggregate shall not exceed $250,000. Notwithstanding anything to the contrary contained in the foregoing sentence, if Acquiror has not advanced the entire amount of the PortaCom Advances to PortaCom on or before the date of the Closing, then on or before the date of the Closing, Acquiror shall have (i) advanced a minimum of $300,000 of the PortaCom Advances to PortaCom and (ii) satisfied the provisions of Section 5.15(b)(i)(A).
(c) On or before the Closing, Acquiror shall have secured general releases from each of its directors and officers agreeing to release Acquiror from any and all claims, liabilities, obligations and demands in connection with the transactions contemplated by this Agreement.
(d) The representations and warranties of Acquiror and the Sub set out in this Agreement shall be true and correct in all material respects at and as of the time of the Closing as though such representations and warranties were made at and as of such time.
(e) Each of Acquiror and the Sub shall have complied in a timely manner and in all material respects with the respective covenants and agreements set out in this Agreement.
(f) The Merger shall have been approved by Sky King and the Sky King Shareholders hereby in accordance with the provisions DGCL (the "Statutory Vote"). It is expressly agreed that the votes of the CBCAholders of all Common Shares will be counted for the purposes of the Statutory Vote, including, without limitation, shares held by the Purchaser, any Purchaser Stockholder and any of their respective affiliates.
(gii) On or before Any applicable waiting period under the Closing, HSR Act relating to the officers and directors of Acquiror transactions contemplated hereby shall have tendered their immediate resignations from office and shall have in conjunction therewith reconstituted the Board of Directors to consist of a maximum of five (5) members and shall have nominated to Acquiror's Board of Directors two (2) individuals designated by the holders of the Sub Preferred Stock and the VDC Designee shall have expired or been designated by the Acquiror's Board of Directors (as such Board was constituted immediately prior to the Closing)terminated.
(hiii) Sky King All actions and the Sky King Shareholders shall be reasonably satisfied that the Merger results consents by or in a tax-free reorganization under Section 368 respect of the Code.
(i) Acquiror shall enter into Employment Agreements or filings with each of Frederick A. Moran and James Roberts substantially in accordance with xxx xxxxx xxxxxxxed wixxxx Xxxxxxx 2.2(b)(xii).
(j) Acquiror shall have executed and delivered the Escrow Agreement to Sky King and the Escrow Agent.
(k) There shall be delivered to Sky King and the Sky King Shareholders an officer's certificate of Acquiror and Sub to the effect that all of the respective representations and warranties of Acquiror and Sub set forth herein are true and complete in all material respects as of the Closing, and the Acquiror and Sub have complied in all material respects with their covenants and agreements set forth herein that are any Governmental Entity required to be complied with by the Closing.
(l) Sky King shall have completed prior to the Closing, to its satisfaction, a due diligence review of the financial condition, results of operations, properties, assets, liabilities, business and prospects of Acquiror.
(m) All director, shareholder, lender, lessor and other parties' consents and approvals, as well as all filings with, and all necessary consents or approvals of, all federal, state and local governmental authorities and agencies, as are required under this Agreement, applicable law or any applicable contract or agreement (other than as contemplated by this Agreement) to complete the Merger shall have been secured.
(n) No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority that prohibits or restricts permit the consummation of the Merger and all consents under material third party contracts shall have been taken, made or obtained, except for any such actions or filings the failure to take, make or obtain would not reasonably be expected to have a Material Adverse Effect.
(iv) The number of Common Shares held by the stockholders of the Company, other than the Purchaser Stockholders or the related transactionsPurchaser voted in favor of the approval and adoption of this Agreement, the Merger and the transactions contemplated hereby shall exceed the number of Common Shares held by the stockholders of the Company, other than the Purchaser Stockholders or the Purchaser voted against the approval and adoption of this Agreement, the Merger and the transactions contemplated hereby (the "Majority of Minority Stockholder Vote"). Abstentions and non-votes shall not be taken into account for the purposes of the foregoing determination. It is expressly agreed that the votes of stockholders who signed the Letter Agreements but who are not Purchaser Stockholders will be counted for the purposes of determining the Majority of the Minority Stockholder Vote.
(v) The Stipulation of Settlement relating to In Re Lexent Inc. Shareholders Litigation Cons. C.A. No. 20177 (the "Stipulation of Settlement") shall be in full force and effect, and the parties thereto shall have complied with and not violated the terms of such stipulation.
(vi) The Company shall have sufficient cash or cash equivalents to pay the aggregate Merger Price, aggregate Option Price, all fees and expenses and all other sums of monies due to any person pursuant to the terms of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Lexent Inc)
