Conditions to Obligation of the Company and the Shareholders. The obligation of the Company and the Shareholders to consummate the transactions to be performed by them in connection with this Agreement is subject to satisfaction of the following conditions, which may be waived , in whole or in part, by the Company and the Shareholders in their sole and absolute discretion: (i) the representations and warranties of EAI set forth in this Agreement shall be true and correct in all material respects at and as of the Closing Date; (ii) EA shall have performed and complied with all of its covenants hereunder in all material respects through the Closing; (iii) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (a) prevent consummation of any of the transactions contemplated by this Agreement or (b) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (nor shall any such injunction, judgment, order, decree, ruling, or charge be in effect); (iv) the parties shall have received all authorizations, consents, and approvals of governments and governmental agencies required to effectuate the transactions contemplated by this Agreement; (v) EAI shall have made the deliveries specified in Section (VI)(b)(i); (vi) all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Company and the Management Shareholders. The Company and the Shareholders may waive any condition specified in this Section VIII by executing a writing so stating at or prior to the Closing; and (vii) EA has notified the Shareholders' Agent that (i) the listing of the EA Shares on the NYSE has been completed and (ii) the SEC has completed its review of the Registration Statement and that there is no reason that the Registration Statement can not be declared effective.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Ea Industries Inc /Nj/)
Conditions to Obligation of the Company and the Shareholders. The obligation of the Company and the Shareholders to consummate effect the transactions to Merger shall be performed by them in connection with this Agreement is subject to satisfaction the fulfillment at or prior to the Effective Time of the following additional conditions, any one or more of which may be waived , in whole or in part, by the Company and the Shareholders in their sole and absolute discretionShareholders:
(ia) NFO and Merger Sub shall each have performed and complied with all covenants and agreements required by this Agreement to be performed or complied with by it on or prior to the Effective Time pursuant to the terms hereof;
(b) The representations and warranties of EAI set forth NFO and Merger Sub contained in this Agreement shall be true and correct on and as of the Effective Time as if made on and as of such date except for representations and warranties expressly made as of a specific date, which shall be true and correct as of such date;
(c) NFO and Merger Sub shall have delivered to the Company and each Shareholder a certificate in all material respects at form and substance reasonably satisfactory to them, dated the Closing Date, certifying as to the matters set forth in Sections 6.2(a) and (b);
(d) The Company and the Shareholders shall have received the opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel to NFO and Merger Sub, dated the date of the Closing, addressed to the Company and the Shareholders, substantially in the form of Exhibit J attached hereto and with customary assumptions, exceptions and qualifications;
(e) No order, statute, rule, regulation, executive order, stay, decree, judgment or injunction shall have been enacted, entered, promulgated or enforced by any court or governmental authority which prohibits or prevents the consummation of the Merger;
(f) NFO and Merger Sub shall each have delivered to the Company certificates, in form and substance reasonably satisfactory to the Company, signed by an executive officer thereof, dated the Closing Date, certifying that full and complete copies of the following are attached thereto: minutes of the Board of Directors thereof and, in the case of Merger Sub, the Shareholders thereof (or unanimous written consents in lieu thereof) authorizing and approving this Agreement and the transactions contemplated hereby, copies of the certificate of incorporation and by-laws thereof as in effect on the date thereof, and such other documents or instruments as the Company may reasonably request in writing not less than two days prior to the Closing Date to carry out the intent and purpose of this Agreement;
(g) NFO shall have executed and delivered the Registration Rights Agreement, dated as of the Closing Date;, between NFO and the Shareholders, substantially in the form of Exhibit K attached hereto; and
(iih) EA The Shareholders shall have performed and complied with all received a final copy of its covenants hereunder the letter of Xxxxxx Xxxxxxxx LLP referred to in Section 3.9 of this Agreement, which letter shall be identical in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (a) prevent consummation of any of the transactions contemplated by this Agreement or (b) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (nor shall any such injunction, judgment, order, decree, ruling, or charge be in effect);
(iv) the parties shall have received all authorizations, consents, and approvals of governments and governmental agencies required to effectuate the transactions contemplated by this Agreement;
(v) EAI shall have made the deliveries specified in Section (VI)(b)(i);
(vi) all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Company and the Management Shareholders. The Company and the Shareholders may waive any condition specified in this Section VIII by executing a writing so stating at or prior draft of such letter previously provided to the Closing; and
(vii) EA has notified the Shareholders' Agent that (i) the listing of the EA Shares on the NYSE has been completed and (ii) the SEC has completed its review of the Registration Statement and that there is no reason that the Registration Statement can not be declared effective.
Appears in 1 contract
Samples: Merger Agreement (Nfo Research Inc)
Conditions to Obligation of the Company and the Shareholders. The obligation obligations of the Company and the Shareholders to consummate the transactions to be performed by them it in connection with this Agreement the Closing is subject to satisfaction of the following conditions, which may be waived , in whole or in part, by the Company and the Shareholders in their sole and absolute discretion:
(i) the representations and warranties of EAI set forth in this Agreement Section 4 above (considered collectively), and each representation and warranty (considered individually) shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing Date;
(ii) EA the Parent shall have performed and complied with all of its covenants and obligations hereunder (considered collectively) and each of this covenants and obligations hereunder (considered individually) in all material respects through the Closing;
(iii) 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 unfavourable injunction, judgment, order, decree, ruling, or charge would (aA) prevent consummation of any of the transactions contemplated by this Agreement or (bB) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (nor shall any and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(iv) all filings that are required to have been made by the parties Parties prior to Closing with any United States or other Governmental Body in order to carry out the transactions contemplated by this Agreement shall have been made and all authorizations, consents and approvals from any United States or other Governmental Body required to carry out the transactions contemplated by this Agreement shall have been received and any applicable waiting periods (or any extensions thereof) shall have expired provided that the Company and the Principal Shareholders shall not be relieved of their obligations to consummate the transactions contemplated by this Agreement if they have not used reasonable best efforts to complete filings and seek consents within their control;
(v) the Parent shall have delivered to the Company and the Shareholder Representative a certificate to the effect that the conditions specified above in Sections 5(b)(i)-5(b)(v) have been satisfied in all respects;
(vi) the Parent shall have executed and delivered the Milestone Payment Agreement in form and substance as set forth in Exhibit C attached hereto, and the same shall be in full force and effect;
(vii) the Shareholder Representative shall have received all authorizationsfrom (i) Fasken Martineau DuMoulin LLP, consentsCanadian counsel to the Parent, xx xpxxxxx xx form and substance as set forth in Exhibit J attached hereto, and approvals (ii) Davis Wright Tremaine LLP, United States counsel to xxx Pxxxxx xxx Xxxxxr Sub, an opinion in form and substance as set forth in Exhibit K attached hereto, each addressed to the Shareholder Representative, and dated as of governments the Closing Date;
(viii) the Parent shall have delivered to the Company and governmental agencies required the Shareholder Representative a certificate of the Secretary of the Parent as to effectuate the incumbency of the officers of the Parent, a copy of certificates evidencing the incorporation and good standing of the Parent, a copy of the articles and bylaws of the Parent, and a copy of the resolutions adopted by the board of directors of the Parent with respect to the transactions contemplated by this Agreement;
(vix) EAI shall have made all actions to be taken by the deliveries specified Parent in Section (VI)(b)(i);
(vi) connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Company Company;
(x) the Parent shall have executed and delivered the Convertible Debenture in the form and substance as set forth in Schedule A hereto, and the Management Shareholderssame shall be in full force and effect;
(xi) the Shareholder Representative shall have executed and delivered the Security Agreement in form and substance as set forth in Exhibit G hereto, and the same shall be in full force and effect; and
(xii) this Agreement and the transactions contemplated hereby shall have been duly and validly approved by not less than two-thirds (2/3) of the outstanding shares of the Company's common stock and preferred stock voting together as a single class. The Company and the Shareholders Shareholder Representative may waive any condition specified in this Section VIII by executing 5(b) if it executes a writing so stating at or prior to the Closing; and
(vii) EA has notified the Shareholders' Agent that (i) the listing of the EA Shares on the NYSE has been completed and (ii) the SEC has completed its review of the Registration Statement and that there is no reason that the Registration Statement can not be declared effective.
Appears in 1 contract
Conditions to Obligation of the Company and the Shareholders. The obligation of the Company and the Shareholders to consummate the transactions to be performed by them in connection with this Agreement the Closing is subject to satisfaction of the following conditions, which may be waived , in whole or in part, by the Company and the Shareholders in their sole and absolute discretion:
(i) All of the Buyer’s representations and warranties of EAI set forth in this Agreement shall be true (considered collectively), and correct each of these representations and warranties (considered individually), must have been accurate in all material respects at and as of the date of this Agreement, and must be accurate in all material respects as of the Closing Date as if made on the Closing Date;
(ii) EA shall All of the covenants and obligations that Buyer is required to perform or to comply with pursuant to this Agreement at or prior to the Closing (considered collectively), and each of these covenants and obligations (considered individually), must have been performed and complied with all of its covenants hereunder in all material respects through the Closingrespects;
(iii) no action, suit, or proceeding there shall not be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction 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 or (b) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (nor shall any such injunction, judgment, order, decree, ruling, or charge be in effect)Agreement;
(iv) the parties Buyer shall have delivered to the Shareholders, as applicable, a certificate to the effect that each of the conditions specified above in §8(b)(i)-(iii) is satisfied in all respects;
(v) Buyer must have delivered each of the documents required to be delivered by Buyer pursuant to §2(d) ;
(vi) the Company and the Buyer shall have received all authorizations, consents, consents and approvals set forth on §8(a)(vii) of governments and governmental agencies required to effectuate the transactions contemplated by this AgreementDisclosure Schedule;
(vvii) EAI there shall not have occurred any Material Adverse Effect with respect to the Buyer; and
(viii) the Buyer shall have made the deliveries specified in Section (VI)(b)(i);
(vi) all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance furnished to the Company Shareholders an opinion of counsel from Xxxxxxx Procter LLP in substantially the form of Exhibit 8(b)(viii) attached hereto and an executed copy of each Ancillary Agreement to which they are parties including, without limitation, the Management ShareholdersLease. The Company and the Shareholders may waive any condition specified in this Section VIII by executing §8(b) if it executes a writing so stating at or prior to the Closing; and
(vii) EA has notified the Shareholders' Agent that (i) the listing of the EA Shares on the NYSE has been completed and (ii) the SEC has completed its review of the Registration Statement and that there is no reason that the Registration Statement can not be declared effective.
Appears in 1 contract
