CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (a) this Agreement and the Merger shall have received the Requisite Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basis; (b) the Target shall have procured all of the third party consents specified in Section 5.2 above; (c) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date; (d) the Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing; (e) 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the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of the Target to own the capital stock of the Surviving Corporation and to control the Surviving Corporation, or (D) affect adversely the right of the Surviving Corporation to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (f) the Major Buyer Shareholders shall have sold 5,000,000 Buyer Shares to Target as provided in the Stock Purchase Agreement attached hereto as Exhibit C; (g) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(f) is satisfied in all respects; (h) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth in the Articles of Merger as directors and officers of the Surviving Corporation; (i) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Buyer and the Transitory Subsidiary. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the Merger shall have received the Requisite Shareholder Stockholder Approval and the number of Dissenting Shares shall not exceed one five percent (15%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basis;
(b) the Target shall have procured all of the third party consents specified in Section SECTION 5.2 above;
(c) the representations and warranties set forth in Section SECTION 3 above shall be true and correct in all material respects at and as of the Closing Date;
(d) the Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(e) 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) affect adversely the right of the Target to own the capital stock of the Surviving Corporation and to control the Surviving Corporation, or (D) affect adversely the right of the Surviving Corporation to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) the Major Buyer Shareholders Target shall have sold 5,000,000 Buyer issued 200,000 Target Shares to Target as provided Marlin Hull, LLC;
(x) xxx Xxrget shall have obtained an executed Registration Rights Agreement in the Stock Purchase Agreement form attached hereto as Exhibit CEXHIBIT D granting certain registration rights to Anthony Silverman and certain other Affiliates of Buyer and alx xxxxxxx xx Xxxxxt Debentures for their shares of capital stock which they will receive at an exercise price of $3.50 per Target Share;
(gh) the Target shall have obtained executed lock-up agreements in the form attached hereto as EXHIBIT B whereby all directors and officers of the Target shall agree to lock-up the Buyer Shares for one (1) year after the Effective Time (and stop transfer instructions shall be given to the stock transfer agent) to be received by them; however, notwithstanding this SECTION 6.1(I), Buyer Shares may be sold in private transactions pursuant to Section 4(1) of the Securities Act if the transferee agrees to abide by the remaining term of the lock-up agreement and if the transferee is approved by Buyer;
(i) During the period from March 31, 2004 to the Closing Date, there shall not have occurred any material adverse change in the financial condition, business or operation of Target taken as a whole;
(j) To insure that all agreements governing any options, warrants, or stock appreciation rights, which have been granted by Target, are explicitly clear in light of the proposed Merger, Target shall obtain prior to and as a condition of Closing from each such holder of its options, warrants or stock appreciation rights, a written confirmation or certification, in a form satisfactory to Buyer and its counsel, specifying the number and exercise price of the Target options as of the Closing Date of the Merger, for which options or warrants of Buyer will be substituted pursuant to the Certificate of Merger, together with such other clarifications or amendments as shall be mutually acceptable to the parties;
(k) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(fSECTIONS 6.1(A)-(J) is satisfied in all respects;
(hl) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth in the Articles Certificate of Merger as directors and officers of the Surviving Corporation;
(im) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Buyer and the Transitory Subsidiary. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section SECTION 6.1 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of each of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed contemplated by it in connection with the Closing this Agreement is subject to satisfaction of the following conditions:
(ai) this Agreement and the Merger shall have received the Requisite Shareholder Stockholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) 10% of the total number of outstanding Target Shares and Target Preferred Shares on an aggregate basisShares;
(b) the Target shall have procured all of the third party consents specified in Section 5.2 above;
(cii) the representations and warranties set forth in Section 3 and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(diii) the Target shall have performed and complied with all of its covenants hereunder in all material respects through with all covenants required to be performed or complied with by it prior to or on the ClosingClosing Date;
(eiv) 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) affect adversely the right of TAO East to own, or the Target Buyer to own indirectly own, the capital stock of the Surviving Corporation and to control the Surviving Corporation, or (D) affect adversely the right of any of the Surviving Corporation to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) the Major Buyer Shareholders shall have sold 5,000,000 Buyer Shares to Target as provided in the Stock Purchase Agreement attached hereto as Exhibit C;
(gv) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(fSection 7(a)(i)-(iv) is satisfied in all respects;
(hvi) the Buyer and the Transitory Subsidiary shall have received from counsel to the Target an opinion in form and substance as set forth in EXHIBIT C attached hereto, addressed to the Buyer and the Transitory Subsidiary, and dated as of the Closing Date;
(vii) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth whom the Buyer shall have specified in writing at least one business day prior to the Articles of Merger as directors and officers of the Surviving CorporationClosing;
(iviii) all actions to the employment agreement between Xxxx and the Buyer executed on the date hereof (the "EMPLOYMENT AGREEMENT") shall be taken by in full force and effect at the Target in connection with consummation of Effective Time;
(ix) the transactions contemplated hereby non-competition agreement between Xxxx and all certificatesthe Buyer (the "XXXX NON-COMPETITION AGREEMENT") shall be full force and effect at the Effective Time;
(x) the non-competition agreement between Xxxxxxxx and the Buyer (the "XXXXXXXX NON-COMPETITION AGREEMENT") shall be full force and effect at the Effective Time; and
(xi) Koch, opinions, instrumentsBirnbaum, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance Xxxxx shall have delivered to the Buyer and the Transitory Subsidiary. Subsidiary a release in the form attached hereto as EXHIBIT D. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 7(a) if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Todd Ao Corp)
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of each of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ai) this Agreement and the Merger shall have received the Requisite Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basisStockholder Approval;
(bii) the Target shall have procured transferred the Excluded Target REIT Assets to the Buyer-REIT;
(iii) to the extent DHI has not been liquidated prior to the Closing in accordance with the terms of Section 5(g)(vi) hereof, the purchase by the Buyer or an Affiliate of the Buyer of all of the third party consents specified in Section 5.2 aboveoutstanding common stock of DHI at a purchase price equal to the book value of DHI less amounts due from its common shareholders, which purchase price approximates $120,000 as of the date of this Agreement (and shall not be materially different at Closing), on terms and conditions mutually satisfactory to the Parties to such transaction; but under all circumstances for a price not greater than $200,000;
(civ) the representations and warranties set forth of the Target in Section 3 above this Agreement not qualified by materiality shall be true and correct in all material respects at and if qualified by materiality shall be true and correct in all respects, in each case as of though made on the Closing Date;
(dv) the Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(evi) no actionstatute, suitrule, regulation 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, other law and no order, decree, rulingstipulation, injunction or charge would (A) prevent shall have been enacted, issued, promulgated, entered or issued by any Governmental Entity which is in effect and has the effect of making the consummation of the Merger illegal, materially restricts, prevents or prohibits consummation of any of the transactions contemplated by this Agreement, (B) cause any hereby or would materially impair the ability of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of the Target Buyer to own the capital stock outstanding shares of the Surviving Corporation and to control or operate its or the businesses of the Surviving Corporation, or (D) affect adversely the right any of the Surviving Corporation to own its assets and to operate its businesses (and no such injunctionCorporation's Subsidiaries following the Effective Time, judgment, order, decree, ruling, nor shall any proceeding by any Governmental Entity seeking any of the foregoing be pending or charge shall be in effect)threatened;
(fvii) the Major Buyer Shareholders Target shall have sold 5,000,000 Buyer Shares purchased, terminated, or otherwise satisfied all outstanding Target SARs and Target Options by payment to Target as provided in the Stock Purchase Agreement attached hereto as Exhibit Cholders thereof of an aggregate purchase price not to exceed $265,000;
(gviii) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(fSection 6(a)(i)-(vii) is satisfied in all respects;
(hix) all applicable waiting periods (and any extensions thereof) under the Buyer Hart-Scott-Rodino Act shall have expired or otherwise xxxx xxxxxxxxxx and the Transitory Subsidiary Parties shall have received all other authorizations, consents, and approvals of Governmental Entities necessary for the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth in the Articles of Merger as directors and officers of the Surviving Corporation;
(i) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby (including, without limitation, those set forth in Sections 3(d) and all certificates4(d) above) without the imposition of any material terms, opinionsconditions, instrumentsrestrictions or limitations;
(x) the Buyer, the Transitory Subsidiary and other documents required the Buyer-REIT shall have obtained the financing they will require in order to effect consummate the transactions contemplated hereby will be satisfactory Merger on terms and conditions reasonably acceptable to the Buyer;
(xi) the Buyer shall have received an opinion dated as of the Closing Date of Venable, Baetjer and Howard, LLP in form and substance xxxxxxxbly satisfactorx xx the Buyer, regarding the qualification of the Target as a REIT under the Code;
(xii) on or prior to the date thirty (30) days from the date of this Agreement (or on the first business day following such 30th day if such 30th day is not a business day), the Buyer shall have received from the holders of ninety (90%) of the outstanding principal amount of the Target Senior Notes any consent to the Merger or this Agreement, or any waiver of any terms of the Target Senior Note Indenture or the Target Senior Notes, as the Buyer shall deem necessary or advisable, which consent or waiver shall be in form and substance reasonably satisfactory to the Transitory SubsidiaryBuyer;
(xiii) the Preferred Stock Charter Amendment shall have been properly filed and be in full force and effect; and
(xiv) no condition shall exist which constitutes a default in, or which but for the lapse of time or the waiver by or forbearance of any Party or Parties thereto would constitute a default in, the performance or observance of any term, covenant (financial or otherwise), representation, warranty or agreement in any agreement of the Target relating to indebtedness for borrowed money (including, without limitation, the Target Senior Notes Indenture or any Target Senior Notes). The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 6(a) if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of each of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the Merger shall have received the Requisite Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basis;
(b) the Target shall have procured all of the third party consents specified in Section 5.2 above;
(ci) the representations and warranties set forth in Section 3 3(a) and Section 4 above shall be true and correct in all material respects at and as of the Closing Date;
(dii) the Target Company and the Sellers shall have performed and complied with all of its their covenants hereunder in all material respects through the Closing;
(eiii) no action, suit, or proceeding there shall not 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 in effect preventing 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) affect adversely the right of the Target to own the capital stock of the Surviving Corporation and to control the Surviving Corporation, or (D) affect adversely the right of the Surviving Corporation to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fiv) the Major Buyer Shareholders shall have sold 5,000,000 Buyer Shares to Target as provided in Company and the Stock Purchase Agreement attached hereto as Exhibit C;
(g) the Target Sellers shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(fSection 7(a)(i)-(iii) is satisfied in all respects;
(hv) all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act shall hxxx xxxxxxx xx otherwise been terminated and the Parties, the Company, and its Subsidiaries shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in Section 3(b) and Section 4(c) above;
(vi) the Buyer and the Transitory Subsidiary shall have received the resignations, effective resignations of (a) each director of the Company and its Subsidiaries (as a director) and (b) each officer of the Company and its Subsidiaries (as an officer) who Buyer requests resign in a writing delivered at least five (5) business days prior to the Closing, such resignations to be delivered at and effective only upon the Closing (with the understanding that such resignations shall not be deemed a breach of each director and officer of the Target other than those set forth in the Articles of Merger as directors and officers of the Surviving Corporationany employment arrangement or fiduciary duty by any party);
(ivii) all actions the Buyer shall have received from counsel to be taken by the Target in connection with consummation of Company and the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance Sellers an opinion addressed to the Buyer and dated as of the Transitory Subsidiary. The Buyer and Closing Date, in a form to be reasonably agreed to by counsels for the Transitory Subsidiary may waive any condition specified in this Section 6.1 if they execute a writing so stating at or prior to the Closing.respective Parties;
Appears in 1 contract
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the Merger shall have received the Requisite Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basis;
(b) the Target shall have procured all of the third party consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(d) the Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(e) 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) affect adversely the right of the Target to own the capital stock of the Surviving Corporation and to control the Surviving Corporation, or (D) affect adversely the right of the Surviving Corporation to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) the Major Buyer Shareholders shall have sold 5,000,000 Buyer Shares to Target as provided in the Stock Purchase Agreement attached hereto as Exhibit C;
(g) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(f6.1(a)-(f) is satisfied in all respects;
(h) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth in the Articles of Merger as directors and officers of the Surviving Corporation;
(i) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Buyer and the Transitory Subsidiary. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the Merger shall have received the Requisite Shareholder Stockholder Approval and the number of Dissenting Shares shall not exceed one five percent (15%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basis;
(b) the Target shall have procured all of the third party consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(d) the Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(e) 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) affect adversely the right of the Target to own the capital stock of the Surviving Corporation and to control the Surviving Corporation, or (D) affect adversely the right of the Surviving Corporation to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) the Major Buyer Shareholders Target shall have sold 5,000,000 Buyer issued 200,000 Target Shares to Xxxxxx Xxxx, LLC;
(g) the Target as provided shall have obtained an executed Registration Rights Agreement in the Stock Purchase Agreement form attached hereto as Exhibit CD granting certain registration rights to Xxxxxxx Xxxxxxxxx and certain other Affiliates of Buyer and all holders of Target Debentures for their shares of capital stock which they will receive at an exercise price of $3.50 per Target Share;
(gh) the Target shall have obtained executed lock-up agreements in the form attached hereto as Exhibit B whereby all directors and officers of the Target shall agree to lock-up the Buyer Shares for one (1) year after the Effective Time (and stop transfer instructions shall be given to the stock transfer agent) to be received by them; however, notwithstanding this Section 6.1(i), Buyer Shares may be sold in private transactions pursuant to Section 4(1) of the Securities Act if the transferee agrees to abide by the remaining term of the lock-up agreement and if the transferee is approved by Buyer;
(i) During the period from March 31, 2004 to the Closing Date, there shall not have occurred any material adverse change in the financial condition, business or operation of Target taken as a whole;
(j) To insure that all agreements governing any options, warrants, or stock appreciation rights, which have been granted by Target, are explicitly clear in light of the proposed Merger, Target shall obtain prior to and as a condition of Closing from each such holder of its options, warrants or stock appreciation rights, a written confirmation or certification, in a form satisfactory to Buyer and its counsel, specifying the number and exercise price of the Target options as of the Closing Date of the Merger, for which options or warrants of Buyer will be substituted pursuant to the Certificate of Merger, together with such other clarifications or amendments as shall be mutually acceptable to the parties;
(k) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(f6.1(a)-(j) is satisfied in all respects;
(hl) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth in the Articles Certificate of Merger as directors and officers of the Surviving Corporation;
(im) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Buyer and the Transitory Subsidiary. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of each of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing Merger is subject to satisfaction of the following conditions:
(a) this Agreement and the Merger shall have received the Requisite Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basis;
(bi) the Target and its Subsidiaries shall have procured all of the third party consents specified in on the date of this Agreement pursuant to Section 5.2 5(b) above;
(cii) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects (other than representations and warranties having materiality qualifiers, which shall be true and correct in all respects) at and as of the Closing DateDate (other than to the extent that any such representation and warranty is, by its terms, expressly limited to a specific date, in which case such representation and warranty shall be true and correct as of such date);
(diii) the Target shall have performed and complied with all of its covenants hereunder required to be performed or complied with on or prior to the Closing Date in all material respects through the Closing;
(eiv) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency since the date 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 there shall not have been or occurred any material adverse change in the business, financial condition or results of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right operations of the Target and its Subsidiaries, taken as a whole, other than changes relating to own the capital stock Target's industry or the economy in general and not specifically related to the Target and its Subsidiaries. Each of the Surviving Corporation Buyer and the Transitory Subsidiary acknowledges that there may be disruptions to control the Surviving Corporation, or (D) affect adversely the right Target's business as a result of the Surviving Corporation announcement of the Merger and any changes primarily attributable to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge the announcement of the Merger shall be in effect)not constitute a material adverse change;
(f) the Major Buyer Shareholders shall have sold 5,000,000 Buyer Shares to Target as provided in the Stock Purchase Agreement attached hereto as Exhibit C;
(gv) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(fSection 6(b)(i)-(iv) is satisfied in all respects;
(hvi) the Buyer and the Transitory Subsidiary shall have received from counsel to the Target an opinion in form and substance substantially as set forth in Exhibit C attached hereto, addressed to the Buyer and the Transitory Subsidiary, and dated as of the Closing Date;
(vii) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those and of each of the officers of the Target and its Subsidiaries set forth in the Articles of Merger as directors and officers Paragraph 6(b)(vii) of the Surviving CorporationDisclosure Schedule delivered by Buyer to the Target;
(iviii) all actions to be taken by Target Stock Options and all Deferred Compensation Shares shall have been canceled; and
(ix) the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance shall have furnished to the Buyer and the Transitory SubsidiarySubsidiary such other customary documents, certificates or instruments as Buyer may reasonably request evidencing compliance by the Target with the terms of this Agreement. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 6(b) if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of each of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ai) this Agreement and the Merger shall have received the Requisite Shareholder Approval Stockholder Approval, and the number of Dissenting Shares excluding any Buyer-owned Shares that are also Dissenting Shares, shall not exceed one ten percent (110%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basisCompany Shares;
(bii) the Target Company and its Subsidiaries shall have procured all of the third party consents specified in Section 5.2 5(b) above;
(ciii) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date, except for those representations and warranties that relate to a particular date, which representations and warranties shall be true and correct as of such date;
(div) the Target Company shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(ev) no action, suit, or proceeding Material Adverse Effect shall be pending or threatened before any court or quasi-judicial or administrative agency have occurred from the date 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, the Closing Date;
(Cvi) affect adversely the right as of the Target to own Closing Date, the capital stock Company and its Subsidiaries shall have cash accessible in the United States and Canada in the amount of $8 million;
(vii) as of the Surviving Corporation and to control the Surviving CorporationClosing Date, or (D) affect adversely the right trade accounts payable days of the Surviving Corporation to own Company and its assets and to operate its businesses Subsidiaries (and computed as total trade accounts payable at Closing DIVIDED by the latest 12 months' cost of revenues MULTIPLIED by 365) shall not exceed 60;
(viii) no such injunction, judgment, temporary restraining order, decree, ruling, preliminary or charge permanent injunction or other order issued by any court of competent jurisdiction or other governmental authority or other legal restraint or prohibition preventing the consummation of the Merger shall be in effect);
(fix) the Major Buyer Shareholders shall have sold 5,000,000 Buyer Shares to Target as provided in the Stock Purchase Agreement attached hereto as Exhibit C;
(g) the Target Company shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(fSection 6(a)(i)-(viii) is satisfied in all respects;
(h) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth in the Articles of Merger as directors and officers of the Surviving Corporation;
(i) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Buyer and the Transitory Subsidiary. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Tab Products Co)
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the Merger shall have received the Requisite Shareholder Stockholder Approval and the number of Dissenting Shares shall not exceed one five percent (15%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basisShares;
(b) the Target and its Subsidiaries shall have procured all of the third party consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(d) the Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(e) 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) affect adversely the right of the Target Buyer to own the capital stock of the Surviving Corporation and to control the Surviving CorporationCorporation and its Subsidiaries, or (D) affect adversely the right of any of the Surviving Corporation and its Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) the Major Buyer Shareholders liabilities set forth in Schedule 6.1(f) shall have sold 5,000,000 Buyer Shares be reduced to a total of $75,000 through the conversion of each one dollar of principal and interest amount of outstanding loans to Target to one dollar of the Target Shares at a price to be determined by the Board of Directors of Target as provided in approved by Buyer and all notes formerly reflecting said loans shall be cancelled and rendered null and void (other than $500,000 which will be due and owing to Pursuit Capital, Inc., which shall be converted into warrants to receive 1,666,600 shares of Common Stock of Buyer, at $.30 per share, expiring May 1, 2007, as of the Stock Purchase Agreement attached hereto as Exhibit CClosing);
(g) the Target shall seek in good faith to negotiate a debt of $100,000 due and owing to Maxy Oil down to a total of $50,000 and regardless of the amount shall have repaid this obligation in full;
(h) the Target shall have obtained executed lock-up agreements whereby all shareholders of the Target shall agree to lock-up the Buyer Shares (and stop transfer instructions shall be given to the stock transfer agent) to be received by them as follows: (i) all officers, directors, Affiliates and employees of Target shall lock-up all shares owned by them or by Persons controlled by them for two years ending two years after the Effective Date; and (ii) for a one-year period from the Effective Date for all shareholders not covered by Section 6.1(h)(i); however, notwithstanding this Section 6.1(h), (i) Buyer Shares may be sold in private transactions pursuant to Section 4(1) of the Securities Act if the transferee agrees to abide by the remaining term of the lock-up agreement and if the transferee is approved by Buyer and (ii) all lock-up agreements will automatically terminate immediately upon Buyer generating $10 million in gross revenues for any one-year period;
(i) During the period from December 31, 2001 to the Closing Date, there shall not have occurred any material adverse change in the financial condition, business or operation of Target taken as a whole;
(j) To insure that all agreements governing any options, warrants, or stock appreciation rights, which have been granted by Target, are explicitly clear in light of the proposed Merger, Target shall obtain prior to and as a condition of Closing from each such holder of its options, warrants or stock appreciation rights, a written confirmation or certification, in a form satisfactory to Buyer and its counsel, specifying the number and exercise price of the Target options as of the Closing Date of the Merger, for which options or warrants of Buyer will be substituted pursuant to the Certificate of Merger, together with such other clarifications or amendments as shall be mutually acceptable to the parties;
(k) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(f6.1(a)-(j) is satisfied in all respects;
(hl) the Registration Statement shall have become effective under the Securities Act;
(m) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target and its Subsidiaries other than those set forth in the Articles of Merger as directors and officers of the Surviving CorporationMerger;
(in) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Buyer and the Transitory Subsidiary. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of each of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ai) this Agreement and the Merger shall have received the Requisite Shareholder Approval Stockholder Approval, and the number of Dissenting Shares excluding any Buyer-owned Shares that are also Dissenting Shares, shall not exceed one ten percent (110%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basisCompany Shares;
(bii) the Target Company and its Subsidiaries shall have procured all of the third party consents specified in Section 5.2 (S)5(b) above;
(ciii) the representations and warranties set forth in Section 3 (S)3 above shall be true and correct in all material respects at and as of the Closing Date, except for those representations and warranties that relate to a particular date, which representations and warranties shall be true and correct as of such date;
(div) the Target Company shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(ev) no action, suit, or proceeding Material Adverse Effect shall be pending or threatened before any court or quasi-judicial or administrative agency have occurred from the date 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, the Closing Date;
(Cvi) affect adversely the right as of the Target to own Closing Date, the capital stock Company and its Subsidiaries shall have cash accessible in the United States and Canada in the amount of $8 million;
(vii) as of the Surviving Corporation and to control the Surviving CorporationClosing Date, or (D) affect adversely the right trade accounts payable days of the Surviving Corporation to own Company and its assets and to operate its businesses Subsidiaries (and computed as total trade accounts payable at Closing divided by the latest 12 months' cost of revenues multiplied by 365) shall not exceed 60;
(viii) no such injunction, judgment, temporary restraining order, decree, ruling, preliminary or charge permanent injunction or other order issued by any court of competent jurisdiction or other governmental authority or other legal restraint or prohibition preventing the consummation of the Merger shall be in effect);
(fix) the Major Buyer Shareholders shall have sold 5,000,000 Buyer Shares to Target as provided in the Stock Purchase Agreement attached hereto as Exhibit C;
(g) the Target Company shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(f(S)6(a)(i)-(viii) is satisfied in all respects;
(h) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth in the Articles of Merger as directors and officers of the Surviving Corporation;
(i) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Buyer and the Transitory Subsidiary. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Cohen Phillip Ean)
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the Merger shall have received the Requisite Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basisMember Approval;
(b) the Target shall have procured all of the third party consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(d) the Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(e) 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) affect adversely the right of the Target Buyer to own the capital stock of the Surviving Corporation and to control the Surviving Corporation, or (D) affect adversely the right of the Surviving Corporation to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) During the Major Buyer Shareholders period from June 30, 2006 to the Closing Date, there shall not have sold 5,000,000 Buyer Shares to Target as provided occurred any material adverse change in the Stock Purchase Agreement attached hereto financial condition, business or operation of Target taken as Exhibit Ca whole;
(g) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(f6.1(a)-(f) is satisfied in all respects;
(h) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth in the Articles of Merger as directors and officers of the Surviving Corporation;
(i) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Buyer and the Transitory Subsidiary. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Aabb Inc)
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the Merger shall have received the Requisite Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basis;
(b) the Target shall have procured all of the third party consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(db) the Target shall have performed and complied with all of its covenants hereunder in all material respects through the ClosingClosing and the Target shall have performed and complied with all of its covenants under existing agreements with the Buyer, including the Manufacturing Agreement and the SPA and all payment obligations under the Promissory Note;
(ec) 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) affect adversely the right of the Target to own the capital stock of the Surviving Corporation Company and to control the Surviving CorporationCompany, or (D) affect adversely the right of the Surviving Corporation Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(fd) the Major Buyer Shareholders Target shall have sold 5,000,000 Buyer Shares to Target as provided procured all of the third party consents specified in the Stock Purchase Agreement attached hereto as Exhibit CSection 5.2 above;
(ge) the transactions contemplated by the Third Party Investment shall be set to close concurrently with or immediately following the Closing of this Agreement, the $10 million in immediately available funds shall have been deposited into an escrow or third party agent reasonably acceptable to Buyer; no action, suit, proceeding shall be pending or threatened which would prevent or delay the consummation of the Third Party Investment or affect the ability of the Buyer to receive the Third Party Investment;
(f) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(f6.1(a)-(e) is satisfied in all respects;
(g) Buyer, in its discretion, shall be satisfied with the Target Disclosure Schedules and any accepted Updates thereto as set forth in Section 5.5 above;
(h) Buyer in its discretion shall be satisfied with the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer financial position of the Target other than those as set forth in on its Updated Target Financial Statements, and such Updated Target Financial Statements and any Updates to the Articles of Merger as directors and officers of the Surviving Corporation;Target Disclosure Schedule shall not contain any claim, liability or loss that has had, or reasonably could be expected to have a Material Adverse Effect on Target; and
(i) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Buyer and the Transitory Subsidiary. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Healthsport, Inc.)
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(a) this Agreement and the Merger shall have received the Requisite Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basisMember Approval;
(b) the Target shall have procured all of the third party consents specified in Section 5.2 above;
(c) the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;
(d) the Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(e) 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) affect adversely the right of the Target to own the capital stock equity of the Surviving Corporation Company and to control the Surviving CorporationCompany, or (D) affect adversely the right of the Surviving Corporation Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(f) the Major Buyer Shareholders Social Bounce, LLC shall have sold 5,000,000 Buyer Shares to Target as provided in the Stock Purchase Agreement attached hereto as Exhibit Cbe owned 100% by Target;
(g) Target shall have delivered to the Buyer and the Transitory Subsidiary audited financial statements of Target as of December 31, 2011;
(h) Target shall have distributed all cash distributions to its members as required by its Operating Agreement, as amended through the date of Closing either in the form of cash or notes.
(i) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(f6.1(a)-(h) is satisfied in all respects;
(h) the Buyer and the Transitory Subsidiary shall have received the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth in the Articles of Merger as directors and officers of the Surviving Corporation;
(ij) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to the Buyer and the Transitory Subsidiary; and
(k) the Target shall have diligently prepared and completed a Current Report on Form 8-K disclosing Buyer's change in shell company status, for filing with the SEC as required in Section 7.1 below. The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 6.2 if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY SUBSIDIARY. The obligation of each of the Buyer and the Transitory Subsidiary to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(ai) this Agreement and the Merger shall have received the Requisite Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the number of outstanding Target Shares and Target Preferred Shares on an aggregate basisStockholder Approval;
(bii) the Target shall have procured transferred the Excluded Target REIT Assets to the Buyer-REIT;
(iii) the purchase by the Buyer or an Affiliate of the Buyer of all of the third party consents specified in Section 5.2 aboveoutstanding common stock of DHI at a purchase price equal to the book value of DHI less amounts due from its common shareholders, which purchase price approximates $120,000 as of the date of this Agreement (and shall not be materially different at Closing), on terms and conditions mutually satisfactory to the Parties to such transaction; but under all circumstances for a price not greater than $200,000;
(civ) the representations and warranties set forth of the Target in Section 3 above this Agreement not qualified by materiality shall be true and correct in all material respects at and if qualified by materiality shall be true and correct in all respects, in each case as of though made on the Closing Date;
(dv) the Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(evi) no actionstatute, suitrule, regulation 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, other law and no order, decree, rulingstipulation, injunction or charge would (A) prevent shall have been enacted, issued, promulgated, entered or issued by any Governmental Entity which is in effect and has the effect of making the consummation of the Merger illegal, materially restricts, prevents or prohibits consummation of any of the transactions contemplated by this Agreement, (B) cause any hereby or would materially impair the ability of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of the Target Buyer to own the capital stock outstanding shares of the Surviving Corporation and to control or operate its or the businesses of the Surviving Corporation, or (D) affect adversely the right any of the Surviving Corporation to own its assets and to operate its businesses (and no such injunctionCorporation's Subsidiaries following the Effective Time, judgment, order, decree, ruling, nor shall any proceeding by any Governmental Entity seeking any of the foregoing be pending or charge shall be in effect)threatened;
(fvii) the Major Buyer Shareholders Target shall have sold 5,000,000 Buyer Shares purchased, terminated, or otherwise satisfied all outstanding Target SARs and Target Options by payment to Target as provided in the Stock Purchase Agreement attached hereto as Exhibit Cholders thereof of an aggregate purchase price not to exceed $250,000;
(gviii) the Target shall have delivered to the Buyer and the Transitory Subsidiary a certificate to the effect that each of the conditions specified above in Sections 6.1(a) -(fSection 6(a)(i)-(vii) is satisfied in all respects;
(hix) all applicable waiting periods (and any extensions thereof) under the Buyer Hart-Scott-Rodino Act shall have expired or otherwise xxxx xxxxxxxxxx and the Transitory Subsidiary Parties shall have received all other authorizations, consents, and approvals of Governmental Entities necessary for the resignations, effective as of the Closing, of each director and officer of the Target other than those set forth in the Articles of Merger as directors and officers of the Surviving Corporation;
(i) all actions to be taken by the Target in connection with consummation of the transactions contemplated hereby (including, without limitation, those set forth in Sections 3(d) and all certificates4(d) above) without the imposition of any material terms, opinionsconditions, instrumentsrestrictions or limitations;
(x) the Buyer, the Transitory Subsidiary and other documents required the Buyer-REIT shall have obtained the financing they will require in order to effect consummate the transactions contemplated hereby will be satisfactory Merger on terms and conditions reasonably acceptable to the Buyer;
(xi) the Buyer shall have received an opinion dated as of the Closing Date of Venable, Baetjer and Howard, LLP in form and substance xxxxxxxbly satisfactory xx xhe Buyer, regarding (i) the qualification of the Target as a REIT under the Code, (ii) the cancelation of the preferred stock (including any unpaid dividends) of the Target at the Effective Time by operation of law under the Virginia Corporation Law and (iii) the absence under Virginia law of any appraisal rights for any holder of Target Shares;
(xii) the Buyer shall have received from the holders of ___% of the outstanding principal amount of the Target Senior Notes any consent to the Merger or this Agreement, or any waiver of any terms of the Target Senior Note Indenture or the Target Senior Notes, as the Buyer shall deem necessary or advisable, which consent or waiver shall be in form and substance reasonably satisfactory to the Transitory SubsidiaryBuyer; and
(xiii) no condition shall exist which constitutes a default in, or which but for the lapse of time or the waiver by or forbearance of any Party or Parties thereto would constitute a default in, the performance or observance of any term, covenant (financial or otherwise), representation, warranty or agreement in any agreement of the Target relating to indebtedness for borrowed money (including, without limitation, the Target Senior Notes Indenture or any Target Senior Notes). The Buyer and the Transitory Subsidiary may waive any condition specified in this Section 6.1 6(a) if they execute a writing so stating at or prior to the Closing.
Appears in 1 contract
