Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Closing are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) of the following further conditions: (a) Thermo shall have performed, or caused to be performed, in all material respects, all of its obligations hereunder required to be performed by it prior to the Closing Date. (b) All third-party consents set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time. (c) Other than the Fundamental Representations made by Thermo, the representations and warranties of Thermo contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or an Acquired Companies Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). (d) Since the date of this Agreement, there shall not have occurred an Acquired Companies Material Adverse Effect. (e) Parent and Merger Sub shall have received a certificate duly executed by an executive officer of Thermo certifying as to the satisfaction of the conditions set forth in Section 7.02(a), 7.02(c) and 7.02(d). (f) Parent shall have received from Thermo a certificate that it is not a U.S. Real Property Holding Company for purposes of Section 897 of the Code. (g) As and to the extent requested by Parent, Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations of the directors and officers of the Acquired Companies, substantially in the form attached as Exhibit C. (h) The Required Contributions shall have occurred and Thermo shall not have thereafter transferred, directly or indirectly, any of the assets that were the subject of the Required Contributions. (i) Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence of the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, in form and substance reasonably satisfactory to Parent. (j) Thermo shall have delivered to Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedules. (k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Samples: Merger Agreement (Globalstar, Inc.)
Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Closing are Merger shall be subject to the satisfaction (oror waiver, at or prior to the extent permitted by Applicable LawEffective Time, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) of the following further conditions:
(a) Thermo shall have performed, (A) each representation or caused to be performed, in all material respects, all warranty of its obligations hereunder required to be performed by it prior to the Closing Date.
(b) All third-party consents Company set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parentthis Agreement, other than Sections 3.3, 3.4(a), 3.4(b), and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo3.19, the representations and warranties of Thermo contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of without giving effect to any representation qualification as to “materiality” or warranty qualified by materiality or an Acquired Companies “Material Adverse Effect” set forth therein) or in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and on or as of such date (except other than those representations and warranties that address matters only as of a particular date or only with respect to a specified dateperiod of time, which need only be true and correct as of such date or with respect to such period), except, in each case, where the accuracy failure of which such representations and warranties to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect that is continuing, (B) each representation or warranty of the Company set forth in Section 3.3 shall be determined true and correct in all material respects as of that specific the date of such representation and warranty (which for purposes hereof shall be deemed satisfied, and such representations and warranties shall be deemed true and correct in all material respects, so long as any inaccuracy or combination of inaccuracies in such representations and warranties does not result, in aggregate, in an increase in the aggregate consideration otherwise payable by Parent in Merger by more than $6,000,000). The Fundamental Representations , and (C) any representation or warranty of Thermo the Company set forth in Sections 3.4(a), 3.4(b), and 3.19 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and on or as of such date (except other than those representations and warranties that address matters only as of a particular date or only with respect to a specified dateperiod of time, the accuracy of which shall need only be determined true and correct as of that specified such date or with respect to such period).
(b) The Company shall have performed in all respects)material respects the covenants or agreements of the Company under this Agreement to be performed or complied with by it as of such time.
(c) Since the date of the Agreement, a Material Adverse Effect has not occurred that is continuing.
(d) Since the date of this Agreement, there shall not have occurred an Acquired Companies Material Adverse Effect.
(e) Parent and Merger Sub The Company shall have received furnished Parent with a certificate duly executed dated as of the Closing Date signed on its behalf by an any of the Company’s chairman of the board of directors or its chief executive officer of Thermo certifying as or such other officer serving in such capacity to the satisfaction of effect that the conditions set forth in Section 7.02(aSections 7.2(a), 7.02(c(b) and 7.02(d).
(fc) Parent shall have received from Thermo a certificate that it is not a U.S. Real Property Holding Company for purposes of Section 897 of the Codebeen satisfied.
(g) As and to the extent requested by Parent, Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations of the directors and officers of the Acquired Companies, substantially in the form attached as Exhibit C.
(h) The Required Contributions shall have occurred and Thermo shall not have thereafter transferred, directly or indirectly, any of the assets that were the subject of the Required Contributions.
(i) Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence of the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, in form and substance reasonably satisfactory to Parent.
(j) Thermo shall have delivered to Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedules.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Conditions to Obligation of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate the Closing are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) of the following further conditions:
(a) Thermo shall have performed, or caused to be performed, in all material respects, all of its obligations hereunder required transactions to be performed by it prior to in connection with the Closing Date.is subject to satisfaction of the following conditions (any of which may be waived by Parent in writing, in whole or in part):
(ba) All third-party consents set forth The representations and warranties of MediSync in Section 7.02(b) of this Agreement and the Company Disclosure Schedule Ancillary Documents that are qualified by materiality or MediSync MAE shall have been obtained be true and correct as so qualified in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect all respects as of the Effective Time.
date of this Agreement and as of the Closing Date (c) Other than without giving effect to any updates, supplements or additions to the Fundamental Representations MediSync Disclosure Schedules delivered hereunder), except to the extent expressly made by Thermoas of a specified date, in which case such representations and warranties shall be true and correct as of such date, and the representations and warranties of Thermo contained MediSync in this Agreement and any certificate the Ancillary Documents that are not qualified by materiality or other writing delivered pursuant hereto MediSync MAE shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or an Acquired Companies Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and as of the date hereof and on of this Agreement and as of the Closing Date with (without giving effect to any updates, supplements or additions to the same effect as though MediSync Disclosure Schedules delivered hereunder), except to the extent expressly made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of in which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and case as of such date date.
(except those representations b) The covenants and warranties obligations that address matters only as of a specified date, MediSync is required to perform or to comply with pursuant to this Agreement at or prior to the accuracy of which shall be determined as of that specified date Closing must have been duly performed and complied with in all material respects).
(c) MediSync shall have procured all of the third party consents specified in Schedule 8.1(c) hereto.
(d) Since MediSync shall have delivered to Parent a certificate, executed by an authorized officer of MediSync, to the date of this Agreementeffect that the conditions specified above in Sections 8.1(a), there shall not (b), and (c) have occurred an Acquired Companies Material Adverse Effectbeen satisfied in all respects.
(e) Parent and Merger Sub MediSync shall have received delivered to Parent a certificate duly certificate, executed by an executive officer the Secretary of Thermo certifying MediSync, attaching the following:
(i) certificates from the State of Delaware and from each jurisdiction in which MediSync is qualified to do business as a foreign entity, dated no earlier than thirty (30) days prior to the Closing Date, as to the satisfaction good standing or foreign qualification to do business, as applicable, of MediSync in such jurisdictions;
(ii) a copy of the conditions set forth in Section 7.02(a)current Certificate of Incorporation and Bylaws of each of MediSync and any MediSync Subsidiary; and
(iii) a copy of the resolutions adopted by the Board of Directors and the stockholders of MediSync authorizing the execution, 7.02(c) delivery and 7.02(d)performance of this Agreement and the Contemplated Transactions.
(f) Parent No Action shall have received from Thermo a certificate that it is not a U.S. Real Property Holding Company for purposes be pending wherein an unfavorable Order would (A) prevent consummation of Section 897 any of the CodeContemplated Transactions, (B) cause any of the Contemplated Transactions to be rescinded following consummation, or (C) adversely affect the right of Parent or Merger Sub to own the assets of MediSync or to operate MediSync’s business as currently conducted (and no such Order shall be in effect).
(g) As and All filings that are required to have been made by MediSync with any Governmental Entity to carry out the extent requested by Parent, Thermo Contemplated Transactions shall have delivered been made and all authorizations, consents and approvals from any Governmental Entity required to Parent, or caused carry out the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations of the directors Contemplated Transactions shall have been received and officers of the Acquired Companies, substantially in the form attached as Exhibit C.any applicable waiting periods shall have expired.
(h) The Required Contributions Certificate of Merger shall have occurred and Thermo shall not have thereafter transferred, directly or indirectly, any been filed with the Secretary of State of the assets that were State of Delaware in accordance with the subject of the Required ContributionsDGCL.
(i) Thermo shall have delivered All actions to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested be taken by Parent relating to the existence MediSync in connection with consummation of the CompanyContemplated Transactions and all certificates, the existence of Xxxxxxxxx LLCopinions, the existence of Thermoinstruments, and other documents required to effect the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, Contemplated Transactions will be reasonably satisfactory in form and substance reasonably satisfactory to Parent.
(j) Thermo The MS Target Purchase Agreement shall have been executed and delivered to Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion parties thereto. Neither Parent nor Merger Sub may assert that a condition to Closing has not occurred if either Parent’s or Merger Sub’s breach of the Company’s independent auditors, and this Agreement or failure to act in good faith has prevented such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedulescondition from being satisfied.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Samples: Merger Agreement (Vyteris, Inc.)
Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate effect the Closing Merger are also subject to the satisfaction (or, to the extent permitted by Applicable Law, or written waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) as of the Closing of the following further conditions:
(a) Thermo shall have performed, or caused to be performed, in all material respects, all of its obligations hereunder required to be performed by it prior to the Closing Date.
(bA) All third-party consents set forth in Section 7.02(b) of the The Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the representations and warranties of Thermo contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of without regard to any representation “materiality”, or warranty qualified by materiality or an Acquired Companies “Company Material Adverse Effect” or similar materiality qualifiers) or in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and as of the date hereof and as of the Closing Date as though made on and as of the Closing Date with and (B) each other representation and warranty of the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specific date Company set forth in all respects). The Fundamental Representations of Thermo Article IV hereof shall be true and correct (without regard to any “materiality”, or “Company Material Adverse Effect” or similar materiality qualifiers) in all respects on and as of the date hereof and as of the Closing Date as though made on and as of the Closing Date with Date, except (x) in the case of clauses (A) and (B), to the extent that such representations and warranties expressly relate to an earlier date, in which case the same effect as though made at shall be true and correct as of such earlier date and (except those y) in the case of clause (B) only, where the failure of such representations and warranties that address matters only to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect.
(b) The Company shall have performed or complied with in all material respects all covenants and agreements required by this Agreement to be performed or complied with by the Company at or prior to the Closing.
(c) The Company shall have delivered to Parent a certificate, dated as of a the Closing Date, stating that the conditions specified datein Sections 7.02(a), the accuracy of which shall be determined as of that specified date in all respects)7.02(b) and 7.02(f) have been satisfied.
(d) No Proceeding by or before a Governmental Entity shall be pending that seeks to prevent or prohibit the consummation of any of the transactions contemplated hereby or to impose any conditions on the consummation of the transactions contemplated hereby.
(e) The Exchange shall have been consummated.
(f) Since the date of this Agreement, there shall has not have occurred an Acquired Companies been any Company Material Adverse Effect.
(e) Parent and Merger Sub shall have received a certificate duly executed by an executive officer of Thermo certifying as to the satisfaction of the conditions set forth in Section 7.02(a), 7.02(c) and 7.02(d).
(f) Parent shall have received from Thermo a certificate that it is not a U.S. Real Property Holding Company for purposes of Section 897 of the Code.
(g) As and to the extent requested by Parent, Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations of the directors and officers of the Acquired Companies, substantially in the form attached as Exhibit C.
(h) The Required Contributions shall have occurred and Thermo shall not have thereafter transferred, directly or indirectly, any of the assets that were the subject of the Required Contributions.
(i) Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence of the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, in form and substance reasonably satisfactory to Parent.
(j) Thermo shall have delivered to Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedules.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Conditions to Obligation of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate the Closing are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) of the following further conditions:
(a) Thermo shall have performed, or caused to be performed, in all material respects, all of its obligations hereunder required transactions to be performed by it prior to in connection with the Closing Date.is subject to satisfaction of the following conditions (any of which may be waived by Parent in writing, in whole or in part):
(ba) All third-party consents set forth The representations and warranties of MediSync in Section 7.02(b) of this Agreement and the Company Disclosure Schedule Ancillary Documents that are qualified by materiality or MediSync MAE shall have been obtained be true and correct as so qualified in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect all respects as of the Effective Time.
date of this Agreement and as of the Closing Date (c) Other than without giving effect to any updates, supplements or additions to the Fundamental Representations MediSync Disclosure Schedules delivered hereunder), except to the extent expressly made by Thermoas of a specified date, in which case such representations and warranties shall be true and correct as of such date, and the representations and warranties of Thermo contained MediSync in this Agreement and any certificate the Ancillary Documents that are not qualified by materiality or other writing delivered pursuant hereto MediSync MAE shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or an Acquired Companies Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and as of the date hereof and on of this Agreement and as of the Closing Date with (without giving effect to any updates, supplements or additions to the same effect as though MediSync Disclosure Schedules delivered hereunder), except to the extent expressly made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of in which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and case as of such date date.
(except those representations b) The covenants and warranties obligations that address matters only as of a specified date, MediSync is required to perform or to comply with pursuant to this Agreement at or prior to the accuracy of which shall be determined as of that specified date Closing must have been duly performed and complied with in all material respects).
(c) MediSync shall have procured all of the third party consents specified in Schedule 8.1(c) hereto.
(d) Since MediSync shall have delivered to Parent a certificate, executed by an authorized officer of MediSync, to the date of this Agreementeffect that the conditions specified above in Sections 8.1(a), there shall not (b), and (c) have occurred an Acquired Companies Material Adverse Effectbeen satisfied in all respects.
(e) Parent and Merger Sub MediSync shall have received delivered to Parent a certificate duly certificate, executed by an executive officer the Secretary of Thermo certifying MediSync, attaching the following:
(i) certificates from the State of Delaware and from each jurisdiction in which MediSync is qualified to do business as a foreign entity, dated no earlier than thirty (30) days prior to the Closing Date, as to the satisfaction good standing or foreign qualification to do business, as applicable, of MediSync in such jurisdictions;
(ii) a copy of the conditions set forth in Section 7.02(a)current Certificate of Incorporation and Bylaws of each of MediSync and any MediSync Subsidiary; and
(iii) a copy of the resolutions adopted by the Board of Directors and the stockholders of MediSync authorizing the execution, 7.02(c) delivery and 7.02(d)performance of this Agreement and the Contemplated Transactions.
(f) Parent No Action shall have received from Thermo a certificate that it is not a U.S. Real Property Holding Company for purposes be pending wherein an unfavorable Order would (A) prevent consummation of Section 897 any of the CodeContemplated Transactions, (B) cause any of the Contemplated Transactions to be rescinded following consummation, or (C) adversely affect the right of Parent or Merger Sub to own the assets of MediSync or to operate MediSync’s business as currently conducted (and no such Order shall be in effect).
(g) As and All filings that are required to have been made by MediSync with any Governmental Entity to carry out the extent requested by Parent, Thermo Contemplated Transactions shall have delivered been made and all authorizations, consents and approvals from any Governmental Entity required to Parent, or caused carry out the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations of the directors Contemplated Transactions shall have been received and officers of the Acquired Companies, substantially in the form attached as Exhibit C.any applicable waiting periods shall have expired.
(h) The Required Contributions Certificate of Merger shall have occurred and Thermo shall not have thereafter transferred, directly or indirectly, any been filed with the Secretary of State of the assets that were State of Delaware in accordance with the subject of the Required ContributionsDGCL.
(i) Thermo shall have delivered All actions to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested be taken by Parent relating to the existence MediSync in connection with consummation of the CompanyContemplated Transactions and all certificates, the existence of Xxxxxxxxx LLCopinions, the existence of Thermoinstruments, and other documents required to effect the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, Contemplated Transactions will be reasonably satisfactory in form and substance reasonably satisfactory to Parent. Neither Parent nor Merger Sub may assert that a condition to Closing has not occurred if either Parent’s or Merger Sub’s breach of this Agreement or failure to act in good faith has prevented such condition from being satisfied.
(j) Thermo shall have delivered to Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedules.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Samples: Merger Agreement (Vyteris, Inc.)
Conditions to Obligation of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate effect the Closing Merger are subject to the satisfaction (orsatisfaction, on or prior to the extent permitted Closing Date, of the following conditions unless waived by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) of the following further conditions:
(a) Thermo shall have performed, or caused to be performed, in all material respects, all Each of its obligations hereunder required to be performed by it prior to the Closing Date.
(b) All third-party consents set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the representations and warranties of Thermo contained the Company in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or an Acquired Companies Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and as of the date hereof and on at and as of the Closing Date with the same effect as though such representations and warranties had been made at and as of such date (except those time, other than representations and warranties that address matters only speak as of a specified date, the accuracy of which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo shall or time (which need only be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date or time);
(except those representations and warranties that address matters only as of a specified date, the accuracy of which b) The Company shall be determined as of that specified date have performed in all respects).material respects all obligations required to be performed by it under this Agreement at or prior to the Closing;
(dc) Since the date of this AgreementAll authorizations, there shall not have occurred an Acquired Companies Material Adverse Effect.
(e) Parent consents, orders and Merger Sub approvals of, and declarations and filings with any Governmental Entity, shall have received a certificate duly executed occurred, been filed or been obtained and any such approvals shall have become Final Orders. A "Final Order" means action by an executive officer of Thermo certifying the relevant regulatory authority which has not been reversed, stayed, enjoined, set aside, annulled or suspended, with respect to which any waiting period prescribed by law before the transaction contemplated hereby may be consummated has expired, and as to the satisfaction of the which all conditions set forth in Section 7.02(a), 7.02(c) and 7.02(d).
(f) Parent shall have received from Thermo a certificate that it is not a U.S. Real Property Holding Company for purposes of Section 897 of the Code.
(g) As and to the extent requested consummation of such transactions prescribed by Parentlaw, Thermo shall regulation or order have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations of the directors and officers of the Acquired Companies, substantially in the form attached as Exhibit C.
(h) The Required Contributions shall have occurred and Thermo shall not have thereafter transferred, directly or indirectly, any of the assets that were the subject of the Required Contributions.
(i) Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence of the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, in form and substance reasonably satisfactory to Parent.
(j) Thermo shall have delivered to Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedules.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.been satisfied;
Appears in 1 contract
Conditions to Obligation of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate effect the Closing are Merger shall be subject to the satisfaction (or, fulfillment or waiver at or prior to the extent permitted by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) Effective Time of the following further additional conditions:
(a) Thermo shall have performed, or caused to be performed, in all material respects, all of its obligations hereunder required to be performed by it prior to the Closing Date.
(b) All third-party consents set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the representations and warranties of Thermo the Company and the Company Stockholder contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all material respects (in as of the case of any representation or warranty Effective Time, except that representations and warranties qualified by materiality or an Acquired Companies Company Material Adverse Effect) or Effect shall be true in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and respects, as of the date hereof and on of this Agreement and as of the Closing Date with the same effect Date, as though made at on and as of such date (time, except those to the extent that any such representations and warranties that address matters only as of a specified date, the accuracy of expressly relate to an earlier date (in which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo case such representations and warranties shall be true and correct in all respects material respects, and those not qualified by materiality or Company Material Adverse Effect shall be true in all respects, on and as of such earlier date);
(b) the date hereof Company and on and as of the Company Stockholder shall have performed in all material respects the obligations required to be performed by them under this Agreement at or prior to the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).Date;
(dc) Since from the date of this AgreementAgreement through the Effective Time, there shall not have occurred an Acquired Companies a Company Material Adverse Effect.;
(d) Parent shall have received a certificate signed by an executive officer of the Company to the effect of Sections 8.2(a), (b) and (c) hereof;
(e) Parent and Merger Sub shall have received a certificate duly executed signed by an executive officer of Thermo certifying as the Company Stockholder to the satisfaction effect of the conditions set forth in Section 7.02(aSections 8.2(a), 7.02(c(b) and 7.02(d).(c) hereof;
(f) Parent the Company shall have received from Thermo a certificate provided Parent with evidence satisfactory to Parent that it is not a U.S. Real Property Holding the Company has obtained all consents, waivers or approvals required for purposes the assignment or transfer of all agreements and instruments identified on Section 897 3.8 of the Code.Disclosure Schedule hereto;
(g) As and the Company shall have furnished Parent with an opinion, dated the Closing Date, of Preston, Gates & Ellix XXX, counsel to the extent requested by ParentCompany, Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations of the directors and officers of the Acquired Companies, substantially in the form attached hereto as Exhibit C.C in form and substance satisfactory to Parent;
(h) The Required Contributions the Company Stockholder and the Company shall have occurred and Thermo shall not have thereafter transferredprovided Parent with a certified statement, directly or indirectly, any pursuant to Section 1.1445-2(c)(3) of the assets Treasury Regulations, that were the subject of Company is not, and has not been within the Required Contributions.last five years, a "United States real property holding corporation";
(i) Thermo no claim, action, suit, investigation or other proceeding shall have delivered to Parent, be pending or caused the Company threatened by any third party (including any governmental agency) before any court or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent administrative agency or otherwise relating to the existence of transactions provided for herein, which may affect Parent or the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, Company in form and substance reasonably satisfactory to Parent.a manner which is materially adverse;
(j) Thermo the Company Stockholder shall have delivered executed the Escrow Agreement;
(k) Kathx Xxxxx xxx Anthxxx Xxxxxx xxxll have entered into an agreement with Parent acknowledging that the shares of Parent Common Stock which they receive pursuant to Parentthe terms of this Agreement will not be registered under the Securities Act and will be subject to restrictions on their sale or disposition;
(l) Gregxxx Xxxx, or caused Xxthxxx Xxxxxx, Xxthx Xxxxx xxx the Company to deliver to Stockholder shall have entered into employment arrangements with Parent, the audited consolidated balance sheet of ; and
(m) the Company and the Company’s Subsidiaries as of December 31Company Stockholder shall have furnished Parent with all other documents, 2017 certificates and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied other instruments reasonably requested by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure SchedulesParent.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Conditions to Obligation of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate the Merger and the transactions to be performed by either one in connection with the Closing are is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) of the following further conditions:
(ai) Thermo shall have performed, or caused to be performed, in all material respects, all each of its obligations hereunder required to be performed by it prior to the Closing Date.
(b) All third-party consents set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the representations and warranties of Thermo contained set forth in this Agreement § 4(a) and any certificate or other writing delivered pursuant hereto § 5 above shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or an Acquired Companies Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though if made at on and as of such date (except those other than representations and warranties that which address matters only as of a specified date, the accuracy of certain date which shall be determined true and correct in all material respects as of such certain date), except to the extent that specific date such representations and warranties are qualified by terms such as “material” and “Target Material Adverse Effect,” in all respects). The Fundamental Representations of Thermo which case such representations and warranties shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though if made at on and as of such date (except those other than representations and warranties that which address matters only as of a specified date, the accuracy of certain date which shall be determined true and correct in all respects as of that specified date such certain date);
(ii) the Target, its officers and directors and Target Stockholders, as the case may be, shall have performed and complied with all of their covenants hereunder in all respects).material respects through the Closing;
(diii) Since this Agreement shall have been adopted as set forth in § 5(z) and under the DGCL and all other applicable law, by requisite vote of the Target Stockholders, and no more than five percent (5%) of the shares of capital stock of the Target shall be Dissenting Shares;
(iv) the Ancillary Agreements shall have been executed and delivered by the parties thereto (other than Parent and Merger Sub);
(v) the Target shall have delivered to Parent all of the Stockholder General Releases that have been executed and delivered by the Target Stockholders;
(vi) the Target shall have delivered to Parent the Closing Financial Statements, which with respect to the Closing Audited Financial Statements, shall have been prepared in accordance with GAAP and audited by BDO in accordance with generally accepted auditing standards, and with respect to the Closing Unaudited Financial Statements, shall have been prepared in accordance with GAAP and reviewed by BDO in accordance with Statement on Auditing Standards No. 100, Interim Financial Information, and which Closing Financial Statements for the years ended December 31, 2003 and 2004 shall not materially differ from the Signing Financial Statements for the years ended December 31, 2003 and 2004 (except for, and to the extent of, any impact resulting from changes to revenue, deferred revenue and net income due to BDO’s audit of Target’s revenue recognition policies as to the fees received under the British Telecom plc Contract 673102, dated May 5, 2004, as amended to date);
(vii) the Parent and its auditors shall have had fourteen (14) days following receipt of the Closing Financial Statements to review the results thereof, and such review shall not have revealed that the Closing Financial Statements fail to comply with GAAP in any material respect (except for, and to the extent of, any impact resulting from changes to revenue, deferred revenue and net income due to BDO’s audit of Target’s revenue recognition policies as to the fees received under the British Telecom plc Contract 673102, dated May 5, 2004, as amended to date);
(viii) the Target shall not have, unless the prior written consent of Parent has been obtained, (A) granted or issued or agreed to grant or issue stock awards under the Target Stock Plan or (B) accelerated the vesting of any stock awards under the Target Stock Plan (except in accordance with the terms of the Target Stock Plan);
(ix) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) have the effect of making any of the transactions contemplated by this Agreement illegal, (D) affect adversely the right of Parent to own the shares of capital stock of the Target and to control the Target and its Subsidiaries, or (E) affect adversely the right of each of the Target or its Subsidiaries to own its material assets and to operate its business in materially the same manner as such business is operated as of the date of this AgreementAgreement (and no such injunction, there judgment, order, decree, ruling, or charge shall not have occurred an Acquired Companies Material Adverse Effect.be in effect);
(ex) Parent and Merger Sub each Key Target Employee shall have received a certificate duly executed by executed, delivered and entered into an executive officer employment agreement in the form of Thermo certifying as to Exhibit F hereto (the satisfaction of the conditions set forth in Section 7.02(a“Employment Agreement”), 7.02(c) and 7.02(d).;
(fxi) Parent shall have received from Thermo a certificate that it is not a U.S. Real Property Holding Company for purposes of Section 897 counsel to Target an opinion in form and substance as set forth in Exhibit G attached hereto, addressed to Parent and Merger Sub, and dated as of the CodeClosing Date;
(xii) each of the Target Preferred Stockholders listed on § 8(a)(xii) of the Target Disclosure Schedule shall have executed, delivered and entered into a voting agreement in the form of Exhibit H hereto (each a “Voting Agreement”). The Voting Agreements shall be in full force and effect as of the Closing Date;
(xiii) Target shall have delivered evidence reasonably satisfactory to Parent that Quallaby S.A.R.L. is in material compliance with all applicable laws (including, without limitation, the corporate law of France), has made all filings required to be made with the Commercial Court in France and has received all renewals, approvals and acknowledgements required by law, including, without limitation the following: (A) an approval of the December 31, 2003 and December 31, 2004 annual accounts and allocation of losses of Quallaby S.A.R.L., (B) the renewal of duties of Quallaby S.A.R.L.’s managing director and (C) an acknowledgement by the shareholders of Quallaby S.A.R.L. that the net assets of Quallaby S.A.R.L. are less than half of its share capital and the approval of the shareholders of Quallaby S.A.R.L. to continue operating the business;
(xiv) the Target, its Subsidiaries and Target Stockholders shall have obtained and each shall be in effect, all consents, orders, assignments, waivers or authorizations, that are required as a result of the Merger, including, without limitation, those referred to in § 4(a)(ii) and § 5(c) above;
(xv) there shall not have occurred since the date of this Agreement any Target Material Adverse Effect;
(xvi) Parent shall have received the written resignation of each of the officers and directors of the Target and its Subsidiaries in the form of Exhibit I hereto;
(xvii) [INTENTIONALLY OMITTED]
(xviii) the Target shall not have (A) declared or paid any dividends on or made other distributions in respect of any of its capital stock, (B) split, combined or reclassified any of its capital stock or issued or authorized or proposed the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock (other than the issuance of Target Common Stock upon the exercise of Target Options or Target Warrants) or (C) repurchased, redeemed or otherwise acquired any shares of its capital stock or any securities convertible into or exercisable for any shares of its capital stock.
(gxix) As and to the extent requested by Parent, Thermo Target shall have delivered to ParentParent a properly executed and acknowledged certification (a “FIRPTA Certificate”), or caused the Company or Xxxxxxxxx LLC to deliver in form and substance reasonably acceptable to Parent, the resignations which states that shares of capital stock of the directors and officers Target do not constitute “United States real property interests” under Section 897(c) of the Acquired CompaniesCode and otherwise satisfies the requirements of Treasury Regulation Section 1.1445-2(c)(3) to exempt the transactions contemplated hereunder from withholding pursuant to the provisions of the Foreign Investment in Real Property Tax Act. In addition, substantially simultaneously with delivery of such FIRPTA Certificate, the Target shall have provided to Parent, as agent for Target, a form of notice to the Internal Revenue Service in accordance with the requirements of Treasury Regulation Section 1.897-2(h)(2) and in form attached as Exhibit C.and substance reasonably acceptable to Parent along with written authorization for Parent to deliver such notice form to the Internal Revenue Service on behalf of the Target upon the Closing of the Merger;
(hxx) The Required Contributions shall have occurred and Thermo shall not have thereafter transferredall actions to be taken by the Target, directly its Subsidiaries or indirectly, any the Target Stockholders in connection with the consummation of the assets that were transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the subject of the Required Contributions.transactions contemplated hereby will be reasonably satisfactory in form and substance to Parent and its counsel;
(ixxi) Thermo the Target and its Subsidiaries shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence copies of the Company, certificate of incorporation of each of the existence Target and its Subsidiaries certified on or soon before the Closing Date by the Secretary of Xxxxxxxxx LLC, State (or comparable officer) of the existence jurisdiction of Thermo, its incorporation;
(xxii) the Target and its Subsidiaries shall have delivered to Parent copies of the certificate of good standing of each of the Target and its Subsidiaries issued on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of its organization and of each jurisdiction in which it is qualified to do business;
(xxiii) the Target and its Subsidiaries shall have delivered to Parent a certificate of secretary of the Target and the authority of Thermo to execute and deliverTarget’s Subsidiaries, and perform its obligations under, this Agreementdated the Closing Date, in form and substance reasonably satisfactory to Parent.Parent as to (A) no amendment to the Certificate of Incorporation (or formation) or the bylaws (or other governing documents); and (B) any resolutions of the board of directors or other authorizing body (or a duly authorized committee thereof) relating to this Agreement and the transactions contemplated hereby; and
(jxxiv) Thermo each of the President and the Chief Financial Officer of the Target shall have delivered to Parent, or caused Parent a certificate to the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for effect that each of the year ended December 2017 accompanied by conditions specified above in § 8(a)(i)-(xxiii) is satisfied in all material respects with respect to the unqualified opinion Target and its Subsidiaries, and the Vice President, Products Management of the Company’s independent auditors, and such audited financial statements Target shall present results of operations that are not worse in any material respect, have delivered a certificate to the Company effect that each of the representations and warranties of the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements Target set forth in § 5(m) and § 5(u) are true and correct in all material respects (other than representations and warranties which are already qualified by materiality, which shall be true and correct in all respects) on Section 7.02(j) and as of the Company Disclosure SchedulesClosing Date as if made on and as of such date. Parent may waive any condition specified in this § 8(a), in its sole and absolute discretion, if it executes a writing so stating at or prior to the Closing.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Samples: Merger Agreement (Micromuse Inc)
Conditions to Obligation of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate the Merger and the transactions to be performed by either one in connection with the Closing are is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) of the following further conditions:
(a) Thermo shall have performed, or caused to be performed, in all material respects, all each of its obligations hereunder required to be performed by it prior to the Closing Date.
(b) All third-party consents representations and warranties set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form 4.1 and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the representations and warranties of Thermo contained in this Agreement and any certificate or other writing delivered pursuant hereto Article V above shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or an Acquired Companies Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though if made at on and as of such date (except those other than representations and warranties that which address matters only as of a specified date, the accuracy of certain date which shall be determined true and correct in all material respects as of such certain date), except to the extent that specific date such representations and warranties are qualified by terms such as “material” and “Material Adverse Effect,” in all respects). The Fundamental Representations of Thermo which case such representations and warranties shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though if made at on and as of such date (except those other than representations and warranties that which address matters only as of a specified date, the accuracy of certain date which shall be determined true and correct in all respects as of that specified date such certain date);
(b) the Target, its officers and directors and the Principal Target Stockholders, as the case may be, shall have performed and complied with all of their covenants hereunder in all respects).material respects through the Closing;
(c) this Agreement shall have been approved and adopted, and the Merger shall have been approved and adopted, by the vote of the Requisite Target Stockholders, and no more than five percent (5%) of the shares of capital stock of the Target shall have the legal right to become Dissenting Shares;
(d) Since the date of this Ancillary Agreements shall have been executed and delivered by the parties thereto (other than Parent and Merger Sub), and no party to any Ancillary Agreement (other than Parent and Merger Sub) shall have revoked, terminated or amended such Ancillary Agreement, there shall not have occurred an Acquired Companies Material Adverse Effect.;
(e) Parent and Merger Sub the Target shall have received a certificate duly delivered to Parent General Releases executed by an executive officer the Requisite Target Stockholders;
(f) the Target shall not have (i) declared or paid any dividends on or made other distributions in respect of Thermo certifying as to any of its capital stock, (ii) split, combined or reclassified any of its capital stock or issued or authorized or proposed the satisfaction issuance of the conditions set forth any other securities in Section 7.02(a)respect of, 7.02(cin lieu of or in substitution for, shares of its capital stock, or (iii) and 7.02(d)repurchased, redeemed or otherwise acquired any shares of its capital stock or any securities convertible into or exercisable for any shares of its capital stock.
(fg) the Target shall not have, unless the prior written consent of Parent has been obtained, (i) granted or issued or agreed to grant or issue stock awards under the Target Stock Plan or (ii) accelerated the vesting of any stock awards under the Target Stock Plans.
(h) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or non-United States jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (iii) have the effect of making any of the transactions contemplated by this Agreement illegal, (iv) affect adversely the right of Parent to own the shares of capital stock of the Target and to control the Target and its Subsidiaries, or (v) affect adversely the right of each of the Target or its Subsidiaries to own its assets and to operate its business (and no such injunction, judgment, order, decree, ruling or charge shall be in effect);
(i) Parent shall have received from Thermo a certificate that it is not a U.S. Real Property Holding Company for purposes of Section 897 counsel to Target an opinion in form and substance as set forth in Exhibit G attached hereto, addressed to Parent and Merger Sub, and dated as of the Code.Closing Date;
(gj) As the Target, its Subsidiaries and Target Stockholders shall have obtained and each shall be in effect, all consents, orders, assignments, waivers or authorizations, that are required as a result of the Merger, including, without limitation, those referred to in Section 4.1(b) and Section 5.3(c) above;
(k) there shall not have occurred since the date of this Agreement any Material Adverse Effect on the Target;
(l) all Target Options and Target Warrants (other than Target Warrants validly exercised prior to the extent requested by Effective Time) shall have been cancelled and Target shall have provided evidence of such cancellation reasonably satisfactory to Parent;
(m) Parent shall have received the written resignation of each of the officers and directors of the Target and its Subsidiaries;
(n) prior to the Closing Date, Thermo the Target shall have given Parent written notice and written evidence of the termination in accordance with their respective terms of all agreements with third party consultants to the Target;
(o) the Target shall have delivered to ParentParent a properly executed and acknowledged certification (a “FIRPTA Certificate”), or caused the Company or Xxxxxxxxx LLC to deliver in form and substance reasonably acceptable to Parent, the resignations which states that shares of capital stock of the directors and officers Target do not constitute “United States real property interests” under Section 897(c) of the Acquired CompaniesCode and otherwise satisfies the requirements of Treasury Regulation Section 1.1445-2(c)(3) to exempt the transactions contemplated hereunder from withholding pursuant to the provisions of the Foreign Investment in Real Property Tax Act. In addition, substantially simultaneously with delivery of such FIRPTA Certificate, the Target shall have provided to Parent, as agent for Target, a form of notice to the Internal Revenue Service in accordance with the requirements of Treasury Regulation Section 1.897-2(h)(2) and in form attached as Exhibit C.and substance reasonably acceptable to Parent along with written authorization for Parent to deliver such notice form to the Internal Revenue Service on behalf of the Target upon the Closing of the Merger;
(hp) The Required Contributions shall have occurred and Thermo shall not have thereafter transferredall actions to be taken by the Target, directly its Subsidiaries or indirectly, any the Target Stockholders in connection with consummation of the assets that were transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the subject of the Required Contributions.transactions contemplated hereby will be reasonably satisfactory in form and substance to Parent and its counsel;
(iq) Thermo the Target and its Subsidiaries shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence copies of the CompanyCertificate of Incorporation of each of the Target and its Subsidiaries certified on or no later than three (3) Business Days before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of its incorporation;
(r) the Target and its Subsidiaries shall have delivered to Parent copies of the certificate of good standing of each of the Target and its Subsidiaries issued on or no later than three (3) Business Days before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of its organization and of each jurisdiction in which it is qualified to do business;
(s) the Target and its Subsidiaries shall have delivered to Parent a certificate of secretary of the Target and each of the Target’s Subsidiaries, dated the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this AgreementClosing Date, in form and substance reasonably satisfactory to Parent.Parent certifying as to the following: (i) no amendment to the Certificate of Incorporation (or formation) or the bylaws (or other governing documents) has been made since the date of this Agreement; and (ii) that the resolutions of the board of directors or other authorizing body, or a duly authorized committee thereof, (copies of which shall be attached to such certificate) approving and authorizing this Agreement and the transactions contemplated hereby are the duly authorized act of such board of directors or other authorizing body;
(jt) Thermo the Target shall have provided evidence reasonably satisfactory to Parent that the Target has made all filings and has taken all steps required to cause the dissolution of GuardedNet Europe Ltd; and
(u) the President of the Target shall have delivered to Parent, or caused Parent a certificate to the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for effect that each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse conditions specified above in any material respect, Section 8.1(a)-(t) have been satisfied in all respects with respect to the Company Target and its Subsidiaries. Parent may waive any condition specified in this Section 8.1, in its sole and absolute discretion, if it executes a writing so stating at or prior to the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure SchedulesClosing.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Samples: Merger Agreement (Micromuse Inc)
Conditions to Obligation of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate effect the Closing are Merger shall be subject to the satisfaction (or, fulfillment or waiver at or prior to the extent permitted by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) Effective Time of the following further additional conditions:
(a) Thermo shall have performed, or caused to be performed, in all material respects, all of its obligations hereunder required to be performed by it prior to the Closing Date.
(b) All third-party consents set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the representations and warranties of Thermo the Company contained in this Agreement and any certificate Agreement, regardless of whether such representations or other writing delivered warranties arise under Article II hereof or pursuant hereto to another provision of this Agreement, shall be true and correct in all respects (in the case of any representation or warranty material respects, except that representations and warranties qualified by materiality or an Acquired Companies Company Material Adverse Effect) or Effect shall be true in all material respects (in respects, as of the case date of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) this Agreement and as of the Effective Time, as though made on and as of such time, except to the date hereof and on and as of the Closing Date with the same effect as though made at and as of extent that any such date (except those representations and warranties that address matters only as of a specified date, the accuracy of expressly relate to an earlier date (in which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo case such representations and warranties shall be true and correct in all respects material respects, and those not qualified by materiality or Company Material Adverse Effect shall be true in all respects, on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified earlier date, the accuracy of which shall be determined as of that specified date in all respects).;
(db) Since from the date of this AgreementAgreement through the Effective Time, there shall not have occurred an Acquired Companies a Company Material Adverse Effect.;
(ec) Parent and Merger Sub shall have received a certificate duly executed signed by an executive officer of Thermo certifying as the Company to the satisfaction effect of Sections 5.2(a) and (b) hereof;
(d) the Company shall have provided Parent with evidence satisfactory to Parent that the Company has obtained all consents, waivers or approvals required for the assignment or transfer of all agreements and instruments identified on Section 2.8 of the conditions set forth Disclosure Schedule hereto;
(e) no claim, action, suit, investigation or other proceeding shall be pending or threatened by any third party (including any governmental agency) before any court or administrative agency or otherwise relating to the transactions provided for herein or which may affect Parent or the Company in Section 7.02(a), 7.02(c) and 7.02(d).a manner which is materially adverse;
(f) Parent shall have received an opinion from Thermo a certificate that it is not a U.S. Real Property Holding Company for purposes of Section 897 of the Code.
(g) As and Empire Valuation Consultants, LLC, with respect to the extent requested by Parent, Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations of the directors and officers of the Acquired Companies, substantially in the form attached as Exhibit C.
(h) The Required Contributions shall have occurred and Thermo shall not have thereafter transferred, directly or indirectly, any of the assets that were the subject of the Required Contributions.
(i) Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence of the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this AgreementMerger, in form and substance reasonably satisfactory to Parent., in its sole discretion;
(jg) Thermo the Company shall have delivered to furnished Parent with all other documents, certificates and other instruments reasonably requested by Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedules.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Conditions to Obligation of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate effect the Closing are Merger shall be subject to the satisfaction (or, fulfillment or waiver at or prior to the extent permitted by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) Effective Time of the following further additional conditions:
(a) Thermo shall have performed, or caused to be performed, in all material respects, all of its obligations hereunder required to be performed by it prior to the Closing Date.
(b) All third-party consents set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the representations and warranties of Thermo the Company and the Company Stockholders contained in this Agreement and any certificate Agreement, regardless of whether such representations or other writing delivered warranties arise under Articles II or III hereof or pursuant hereto to another provision of this Agreement, shall be true and correct in all respects (in the case of any representation or warranty material respects, except that representations and warranties qualified by materiality or an Acquired Companies "Company Material Adverse Effect) or " shall be true in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and respects, as of the date hereof and on of this Agreement and as of the Closing Date with the same effect Date, as though made at on and as of such date (time, except those to the extent that any such representations and warranties that address matters only as of a specified date, the accuracy of expressly relate to an earlier date (in which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo case such representations and warranties shall be true and correct in all respects material respects, and those not qualified by materiality or Company Material Adverse Effect shall be true in all respects, on and as of such earlier date);
(b) the date hereof Company and on and as of the Company Stockholders shall have performed in all material respects the obligations required to be performed by them under this Agreement at or prior to the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).Date;
(dc) Since from the date of this AgreementAgreement through the Effective Time, there shall not have occurred an Acquired Companies a Company Material Adverse Effect.;
(d) Parent shall have received a certificate signed by an executive officer of the Company to the effect of Sections 6.2(a), (b) and (c) hereof;
(e) Parent and Merger Sub shall have received a certificate duly executed by an executive officer each of Thermo certifying as the Company Stockholders to the satisfaction effect of the conditions set forth in Section 7.02(aSections 6.2(a), 7.02(c(b) and 7.02(d).(c) hereof;
(f) Parent the Company shall have received from Thermo a certificate provided Parent with evidence satisfactory to Parent that it is not a U.S. Real Property Holding the Company has obtained all consents, waivers or approvals required for purposes the assignment or transfer of all agreements and instruments identified on Section 897 3.8 of the Code.Disclosure Schedule hereto;
(g) As and the Company shall have furnished Parent with an opinion, dated the Closing Date, of Stahx, Xxrtens & Bernxx, XXP, counsel to the extent requested by ParentCompany, Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations of the directors and officers of the Acquired Companies, substantially in the form attached hereto as Exhibit C.E in form and substance satisfactory to Parent;
(h) The Required Contributions the Company Stockholders and the Company shall have occurred and Thermo shall not have thereafter transferredprovided Parent with a certified statement, directly or indirectly, any of the assets that were the subject of the Required Contributions.
(i) Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence of the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, in form and substance reasonably satisfactory to Parent.
(j) Thermo shall have delivered to Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedules.
(k) Any adjustments pursuant to Section 2.04(f)(i1.1445-2(c)(3) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.the
Appears in 1 contract
Conditions to Obligation of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate effect the Closing are Merger is also subject to the satisfaction or waiver (or, where permissible by applicable Law) by Parent on or prior to the extent permitted by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) Closing Date of the following further conditions:
(a) Thermo shall have performed, or caused to be performed, in all material respects, all of its obligations hereunder required to be performed by it prior to the Closing Date.
(b) All third-party consents set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the The representations and warranties of Thermo contained the FT Stockholders and the Company set forth in ARTICLE IV of this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all material respects (in without giving effect to any limitation indicated by the case of any representation or warranty qualified by materiality or an Acquired Companies words “Material Adverse Effect) or ,” “in all material respects (respects,” “in the case of any representation material respect,” “material,” or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect“materially”) on when made and as of immediately prior to the date hereof and on and Effective Time, as of the Closing Date with the same effect as though if made at and as of such date time (except those representations and warranties that address matters only as of a specified particular date, the accuracy of which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respectsdate).
(db) The FT Stockholders and the Company shall have performed in all material respects all obligations, and complied in all material respects with the agreements and covenants in this Agreement required to be performed by or complied with by them at or prior to the Closing.
(c) Since the date of this Agreement, there shall not have occurred an Acquired Companies been any Material Adverse EffectEffect on the Company and its Subsidiaries, taken as a whole, or any event, change, or effect that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
(d) The FT Stockholders and the Company shall have delivered, or caused to be delivered, to Parent at the Closing, the closing deliveries described in Section 1.8(c).
(e) Parent shall have completed and be satisfied with its financial due diligence of the Company and its Subsidiaries (including without limitation preparation of the Company Audited Financial Statements and Parent being satisfied with the results thereof).
(f) As of the Closing, the Company shall have no Indebtedness other than trade payables that are not past due and have been incurred in the Ordinary Course of Business.
(g) Parent shall have received the Financing on terms satisfactory to it.
(h) Parent and Merger Sub shall have received a certificate duly executed by an executive officer of Thermo certifying the Closing Statement and shall be reasonably satisfied that, as to the satisfaction of the conditions set forth in Section 7.02(a)Closing, 7.02(c) the Working Capital Ratio shall be not less than 1:1 and 7.02(d).
(f) Parent the Company shall have received from Thermo a certificate that it is free and unrestricted cash of not a U.S. Real Property Holding Company for purposes of Section 897 of the Code.
(g) As and to the extent requested by Parent, Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations of the directors and officers of the Acquired Companies, substantially in the form attached as Exhibit C.
(h) The Required Contributions shall have occurred and Thermo shall not have thereafter transferred, directly or indirectly, any of the assets that were the subject of the Required Contributionsless than $500,000.00.
(i) Thermo Parent and Merger Sub shall have delivered received verification satisfactory to Parent, or caused them that the Company has paid or Xxxxxxxxx LLC made arrangements satisfactory to deliver to Parent, Parent for the payment of all documents reasonably requested by Parent Taxes relating to the existence Company and its Subsidiaries and all of their income, businesses, assets or properties relating to all periods prior to the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, in form and substance reasonably satisfactory to ParentClosing.
(j) Thermo shall have delivered to ParentThe consents, or caused the Company to deliver to Parentwaivers, the audited consolidated balance sheet of the Company approvals, authorizations, Orders, Permits, declarations, filings, registrations, actions and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements notifications set forth on Section 7.02(j) of the Company Disclosure SchedulesSchedule 3.3 shall have been obtained and be in full force and effect.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Samples: Merger Agreement (Cinedigm Corp.)
Conditions to Obligation of Parent and Merger Sub. The obligations obligation of Parent and Merger Sub to consummate the Closing are transactions contemplated by this Agreement is subject to the satisfaction fulfillment on or prior to the Closing Date of each of the following conditions, any one or more of which (or, to the extent permitted by Applicable applicable Law, waiver ) may be waived by the Special Committee of Parent, on behalf of Parent and Merger Sub) of the following further conditions:
(a) Thermo shall have performed, or caused to be performed, in all material respects, all of its obligations hereunder required to be performed by it prior to the Closing Date.
(b) All third-party consents set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the The representations and warranties of Thermo Wholesale Holdings, the Company and Stockholders (i) contained in Article II and Article III (other than those set forth in clause (ii) below) of this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of without giving effect to any representation or warranty qualified by limitation as to materiality or an Acquired Companies Material Adverse EffectEffect or similar qualification) or in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and both as of the date hereof and on of this Agreement and as of the Closing Date with the same effect as though made at and as of (other than such date (except those representations and warranties that address matters only are made as of a specified date, the accuracy of which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo representations and warranties shall be true and correct (without giving effect to any limitation as to materiality or Material Adverse Effect or similar qualification) as of such date), except where the failure to be so true and correct has not had a Company Material Adverse Effect, and (ii) contained in all respects on Sections 3.1, 3.3(a), 3.7 (b), (d)-(q), 3.10(c) and 3.22-3.25 of this Agreement shall be true and correct both as of the date hereof and on of this Agreement and as of the Closing Date with the same effect as though made at and as of (other than such date (except those representations and warranties that address matters only are made as of a specified date, the accuracy of which representations and warranties shall be determined true and correct as of that specified date such date), except where the failure to be so true and correct would not be material to the Company and Wholesale Holdings, taken as a whole.
(b) There shall not have occurred a Company Material Adverse Effect on or after the Effective Date and prior to Closing.
(c) No temporary restraining order, preliminary or permanent injunction, cease and desist Order or other Order issued by any Governmental Body, shall be in all respects)effect prohibiting or preventing the transactions contemplated by this Agreement.
(d) Since Wholesale Holdings, the date of this AgreementCompany, there and/or the Stockholders, as applicable, shall not have occurred an Acquired Companies Material Adverse Effect.delivered the following to Parent:
(e) Parent and Merger Sub shall have received a certificate duly certificate, dated as of the Closing Date, executed by an executive a duly authorized officer of Thermo certifying as to the satisfaction of Company representing that the conditions set forth in Section 7.02(a), 7.02(c6.1(a) and 7.02(dSection 6.1(b) have been satisfied (the “Company Closing Certificate”).;
(f) Parent shall have received from Thermo a certificate that it is not a U.S. Real Property Holding Company for purposes fully-executed stock power of Section 897 of the Code.each Stockholder;
(g) As a certificate of the secretary of each of Wholesale Holdings and the Company certifying to (A) the extent requested articles of organization or incorporation (as applicable), as amended, of the Company and stating that no amendments have been made to such articles of organization or incorporation, as applicable, since such date, (B) all other Governing Documents of each such entity, and (C) the adoption of resolutions by Parent, Thermo shall have delivered each such entity approving the transactions contemplated by the Transaction Documents;
(h) a properly executed affidavit from each Stockholder in a form satisfactory to Parent, or caused certifying that such Stockholder is not a foreign person within the Company or Xxxxxxxxx LLC to deliver to Parent, the resignations meaning of Section 1445 of the directors Code;
(i) the Escrow Agreement, duly executed and officers of delivered by the Acquired CompaniesRepresentative;
(j) the General Release, duly executed and delivered by each Stockholder and the Company;
(k) the Registration Rights Agreement, substantially in the form attached hereto as Exhibit C.C (the “Registration Rights Agreement”), duly executed and delivered by each Stockholder;
(hl) The Required Contributions shall have occurred and Thermo shall not have thereafter transferred, directly or indirectly, any resignations of the assets that were the subject of the Required Contributions.
(i) Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence of the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, officers and the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, in form and substance reasonably satisfactory to Parent.
(j) Thermo shall have delivered to Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet directors of the Company and Wholesale Holdings pursuant to Section 5.5; and
(m) new leases with respect to the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each Leased Properties owned by Affiliates of the year ended December 2017 accompanied Stockholders, substantially in the form attached hereto as Exhibit D (the “New Leases”), executed by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedulesapplicable landlord.
(kn) Any adjustments pursuant to The conditions set forth in Section 2.04(f)(i) 6.1 of the MIPA shall have been satisfied or waived (other than those conditions that by their terms cannot have resulted in an Actual LTM EBITDA be satisfied until the closing of less than $60,000,000the transactions contemplated by the MIPA).
Appears in 1 contract
Samples: Merger Agreement (RumbleON, Inc.)
Conditions to Obligation of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Closing are is subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by the Special Committee of Parent, on behalf of Parent itself and Merger Sub) of the following further conditions:
(a) Thermo The Company shall have performed, or caused to be performed, performed in all material respects, respects all of its covenants and obligations hereunder required to be performed by it prior to the Closing DateClosing.
(b) All third-party consents set forth in Section 7.02(b) of the Company Disclosure Schedule shall have been obtained in form and substance reasonably satisfactory to Parent, and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the The representations and warranties of Thermo the Company contained in Section 3.05 and Section 3.07(a) shall be true and correct in all respects at and as of the Closing Date, as if made at and as of such date (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be so true and correct only as of such time); the other Fundamental Representations and Section 3.15 (in each case, disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all material respects at and as of the Closing Date, as if made at and as of such date (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be so true and correct only as of such time); the other representations and warranties of the Company contained in this Agreement and in any certificate or other writing delivered pursuant hereto (disregarding all materiality and Company Material Adverse Effect qualifications contained therein) shall be true and correct at and as of the Closing Date as if made at and as of such date (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be so true and correct only as of such time), in the case of this clause (iii), with only such exceptions as would not, individually or in the aggregate, have, or reasonably be expected to have, a Company Material Adverse Effect; and the representations and warranties of the Equityholders’ Representative contained in Article 10 shall be true and correct in all respects (other than in the case of any representation or warranty qualified by materiality or an Acquired Companies Material Adverse Effect) or in all material de minimis respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and as of the date hereof and on at and as of the Closing Date with the same effect Date, as though if made at and as of such date (except those other than such representations and warranties that by their terms address matters only as of a another specified datetime, the accuracy of which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo shall be so true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and only as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respectstime).
(dc) Since the date of this Agreement, there shall not have occurred an Acquired Companies a Company Material Adverse Effect.
(ed) Parent and Merger Sub shall have received a certificate duly executed by an executive officer of Thermo the Company certifying as to the satisfaction of the conditions set forth in Section 7.02(aSections 8.02(a), 7.02(c8.02(b) and 7.02(d8.02(c).
(fe) Parent shall have received from Thermo the Company a certificate certification, signed by the Company under penalties of perjury and dated not more than 30 days prior to the Closing Date, that satisfies the requirements of Sections 1.897-2(h) and 1.1445-2(c)(3) of the Treasury Regulations and confirms that the Company is not, nor has it is not been within five years of the date of the certification, a U.S. Real Property Holding Company for purposes of “United States real property holding corporation” as defined in Section 897 of the CodeCode and a notice to the IRS, signed by the Company, that satisfies the requirements of Section 1.897-2(h)(2) of the Treasury Regulations.
(f) The Support Agreements and the counterparts to the Written Consent, in each case duly executed by the Company and each of the Equityholders party thereto, shall be in full force and effect.
(g) As and to the extent requested by Parent, Thermo The Company shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, Parent the resignations of each director, officer, manager or other Persons holding similar titles from such positions with the directors and officers of the Acquired Companies, substantially Company in the form attached as Exhibit C.accordance with Section 5.06.
(h) The Required Contributions Equityholder Vote shall have occurred been validly obtained under Delaware Law and Thermo shall not have thereafter transferred, directly or indirectly, any of the assets that were the subject of the Required ContributionsCompany’s Governing Documents.
(i) Thermo The Companies and the other Persons party thereto shall have delivered to Parent, or caused Parent the consents specified in Section 8.02(i) of the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence of the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, Disclosure Schedules in form and substance reasonably satisfactory acceptable to Parent.
(j) Thermo shall have delivered to Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedules.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Signify Health, Inc.)
Conditions to Obligation of Parent and Merger Sub. The All obligations of Parent and Merger Sub to consummate the Closing and Parent under this Agreement are subject to the satisfaction (orfulfillment, prior to or at the extent permitted by Applicable LawClosing, waiver by the Special Committee of Parent, on behalf of Parent and Merger Sub) each of the following further conditions, any or all of which may be waived in whole or in part by Parent or Merger Sub:
(a) Thermo shall have performed, or caused to be performed, All representations and warranties made by ISI in all material respects, all of its obligations hereunder required to be performed by it prior to the Closing Date.
(b) All third-party consents set forth in Section 7.02(b) of the Company Disclosure Schedule this Agreement shall have been obtained in form true and substance reasonably satisfactory to Parent, correct when made and shall remain in full force and effect as of the Effective Time.
(c) Other than the Fundamental Representations made by Thermo, the representations and warranties of Thermo contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or an Acquired Companies Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or an Acquired Companies Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same force and effect as though if such representations and warranties were made at and as of such date (the Closing, except with respect to those representations and warranties that address matters only specifically made as of a specified date, the accuracy of an earlier date (in which shall be determined as of that specific date in all respects). The Fundamental Representations of Thermo case such representations and warranties shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date earlier date). Parent and Merger Sub shall have performed or complied in all material respects with all agreements, terms, covenants and conditions required by this Agreement to be performed or complied with by them prior to or at the Closing;
(except those representations and warranties that address matters only as of a specified dateb) ISI, the accuracy of which shall be determined as of that specified date in all respects).
(d) Since the date of this Agreement, there shall not have occurred an Acquired Companies Material Adverse Effect.
(e) Parent and Merger Sub shall have received a certificate duly executed by an executive officer of Thermo certifying as approvals, acquiescence or consents (including any approvals, acquiescence or consents that may be required in order to fulfill the satisfaction transactions contemplated herein), all on terms and conditions acceptable to Merger Sub, of the conditions set forth transactions contemplated in Section 7.02(a)this Merger Agreement from all necessary governmental agencies and authorities and all applicable waiting periods shall have expired, 7.02(c) and 7.02(d)ISI or the Parent or Merger Sub shall have received the approvals and consents of all third parties required to consummate this Merger Agreement and the other agreements contemplated herein. Such approvals and the transactions contemplated herein shall not have been contested or threatened to be contested by any Federal or state governmental authority or by any other third party by formal proceedings.
(fc) Parent No action shall have received from Thermo been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to this Merger Agreement, the Merger, or the transactions contemplated herein or therein by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including the entry of a certificate preliminary or permanent injunction, that it is not would (a) make this Merger Agreement or any other agreement contemplated herein or the transactions contemplated herein illegal, invalid or unenforceable, (b) require the divestiture of a U.S. Real Property Holding Company for purposes of Section 897 material portion of the Code.
(g) As and to assets of ISI or the extent requested by Parent, Thermo shall have delivered (c) impose material limits on the ability of any party to Parentthis Merger Agreement to consummate the Agreement or any other agreement contemplated herein or the transactions contemplated herein, or caused the Company (d) otherwise result in a change having a Material Adverse Effect on ISI or Xxxxxxxxx LLC Parent. No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending that would reasonably be expected to deliver to Parent, the resignations of the directors and officers of the Acquired Companies, substantially result in the form attached as Exhibit C.
(h) The Required Contributions shall have occurred and Thermo shall not have thereafter transferred, directly or indirectly, any of the assets that were the subject of the Required Contributionsconsequences referred to in clauses (a) through (d) above.
(i) Thermo shall have delivered to Parent, or caused the Company or Xxxxxxxxx LLC to deliver to Parent, all documents reasonably requested by Parent relating to the existence of the Company, the existence of Xxxxxxxxx LLC, the existence of Thermo, and the authority of Thermo to execute and deliver, and perform its obligations under, this Agreement, in form and substance reasonably satisfactory to Parent.
(j) Thermo shall have delivered to Parent, or caused the Company to deliver to Parent, the audited consolidated balance sheet of the Company and the Company’s Subsidiaries as of December 31, 2017 and the related audited consolidated statements of income and comprehensive income, members’ equity and cash flows for each of the year ended December 2017 accompanied by the unqualified opinion of the Company’s independent auditors, and such audited financial statements shall present results of operations that are not worse in any material respect, to the Company and the Company’s Subsidiaries taken as a whole, than the results of operations presented in the Unaudited Financial Statements set forth on Section 7.02(j) of the Company Disclosure Schedules.
(k) Any adjustments pursuant to Section 2.04(f)(i) shall not have resulted in an Actual LTM EBITDA of less than $60,000,000.
Appears in 1 contract
