Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Date: (i) this Agreement and the Merger shall have received the Requisite Stockholder Approval; (ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries; (iii) the representations and warranties set forth in (S)4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date); (iv) each of the Purchaser and the Purchaser Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing; (v) neither any Order shall be enacted, promulgated, entered, enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of the transactions contemplated by the Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegal; (vi) each of the Purchaser and the Purchaser Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(iv) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders; (vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E); (viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above; (ix) the Registration Statement shall have been declared effective by the SEC under the Securities Act; and (x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject to the provisions of applicable law, the Target may waive, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 2 contracts
Samples: Merger Agreement (Primus Telecommunications Group Inc), Merger Agreement (Primus Telecommunications Group Inc)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Buyer Stockholder Approval;
, and the Buyer shall have complied, in all respects, with the Securities Act, the Securities Exchange Act, and applicable Nevada Law in acquiring such stockholder approval; (ii) the Purchaser and its Subsidiaries Buyer's Information Statement shall have procured all material third-party consents specified in (S)5(b) above which are applicable to become efFective under the Purchaser and its Subsidiaries;
Securities Act; (iii) the Buyer Shares that will be issued in the Merger shall be validly issued under law, fully paid, non-assessable "restricted shares" as that term is de5ned under the Securities Act; (iv) all the representations and warranties set forth in (S)4 ss.4 above shall be true and correct in all material respects at and as of the Closing Date, except for ; (Av) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) each of the Purchaser and the Purchaser Subsidiary Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
; (vvi) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes afFect adversely the purchase ofright of the Surviving Corporation to own the Target's, or payment forBuyer's assets, some to operate their businesses or all of to control the Target Shares illegal;
(viand no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (vii) each of the Purchaser and the Purchaser Subsidiary Buyer shall have delivered to the Target a certificate of af5davit to the effect that each of the conditions specified above in (S)6(b)(i)-(ivss.6(b)(i)-(vi) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this viii)this Agreement and the Merger shall have received the Requisite Target Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
Approval; (ix) that the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
Buyer has presented to Target a fully signed and executed Option Agreement between Target's President (xDavid Bawarsky) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaqand xxx Xxxxx xxxxxxxxx xxxxxxxx xo David Bawarsky 300,000 xxx-xxxxxxng shares of &eely tradable stock of Buyer at an exercise price of $0.15/share, subject to official notice exerciseable immediately upon any dilution of issuance. Subject to the provisions of applicable lawBuyer, the Target may waivepost-merger, during a two year period, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating at or prior to the Closing.exchange for consulting services
Appears in 2 contracts
Samples: Merger Agreement (Algorhythm Technologies Corp /Fl/), Merger Agreement (Algorhythm Technologies Corp /Fl/)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiia) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivb) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(vc) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase of, or payment for, some or all right of the Target Shares illegal;
(vi) each to own the capital stock of the Purchaser Surviving Corporation and to control the Purchaser Subsidiary shall have delivered to Surviving Corporation, or (D) affect adversely the Target a certificate to the effect that each right of the conditions specified above in Surviving Corporation to own its assets and to operate its businesses (S)6(b)(i)-(iv) is satisfied in all respects; providedand no such injunction, howeverjudgment, with respect to (S)6(b)(i)order, each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger decree, ruling, or charge shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(Eeffect);
(viiid) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties Target shall have received all other material authorizations, consents a total of One Million Dollars ($1,000,000) in Buyer Debentures from Xxxxxxx Xxxxxxxxx or his associates on or before the closing and approvals the Buyer and the Target shall have mutually agreed in writing as to the sources of governments and governmental agencies referred to the One Million Dollars in (S)3(d) and (S)4(d) abovefinancing;
(ixe) the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject to the provisions of applicable law, the Target may waive, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating at or immediately prior to the Closing, there shall not be greater than 2,500,000 shares of Common Stock, issued and outstanding of Buyer and there shall not be any Buyer Derivative Securities outstanding.
(f) Buyer shall have obtained an executed lock-up and escrow agreement in the form attached hereto as Exhibit C whereby Xxxxxxx Xxxxxxxxx agrees to lock-up the greater of 220,000 Buyer Shares or thirty percent (30%) of the total number of Buyer Shares owned by him until one (1) year after the Effective Time;
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger Registration Statement shall have received become effective under the Requisite Stockholder ApprovalSecurities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued or proceedings therefor initiated or threatened by the SEC;
(ii) the Purchaser and its Subsidiaries Acquiror Shares that will be issued in the Merger shall have procured all material third-party consents specified in (S)5(b) above which are applicable been approved for listing on the Nasdaq National Market, subject to the Purchaser and its Subsidiariesofficial notice of issuance;
(iii) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) since August 5, 1999, there shall have been no material adverse change in the business, assets, financial condition, operations, results of operations or future prospects of the Acquiror and its Subsidiaries, taken as a whole, which the Disclosure Document does not (i) disclose has occurred, (ii) disclose may occur (other than in the "Risk Factors" section) or (iii) disclose may occur under a caption in the "Risk Factors" section that is referred to in the Disclosure Document other than in the "Risk Factors" section;
(v) each of the Purchaser Acquiror and the Purchaser Subsidiary Acquiror Sub shall have performed and complied with all of its covenants and obligations hereunder in all material respects through the Closing;
(v) neither any Order shall be enacted, promulgated, entered, enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of the transactions contemplated by the Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegal;
(vi) each of the Purchaser Acquiror and the Purchaser Subsidiary Acquiror Sub shall have delivered to the Target a certificate of its Chief Executive Officer and its Chief Financial Officer or general counsel to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 6(b)(i)-(v) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that vii) this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E)Shareholder Approval;
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties Target shall have received all a favorable opinion from Dorsxx & Whitney LLP, dated as of the Effective Time, as to the matters set forth in Section 4(a) (other material authorizationsthan as to outstanding shares), consents and approvals of governments and governmental agencies referred to in (S)3(d) b), and (S)4(dc) abovehereof and as to the valid issuance and listing on Nasdaq of the Acquiror Shares being issued in the Merger and the effectiveness of the Registration Statement;
(ix) the Registration Statement Target shall have been declared effective received an opinion from Dorsxx & Xhitxxx XXX, dated as of the Effective Time, substantially to the effect that, on the basis of the facts, representations and assumptions set forth in such opinions which are consistent with 22 24 the state of facts existing at the Effective Time, the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and that accordingly:
(A) No gain or loss will be recognized by the SEC under Acquiror, Acquiror Sub or Target as a result of the Securities Act; andMerger.
(B) No gain or loss will be recognized by the shareholders of Target who exchange Target Shares for Acquiror Shares pursuant to the Merger, except with respect to any cash received by such Target shareholders in the Merger.
(C) Gain, if any, but not loss, will be recognized by Target Shareholders upon the exchange of Target Shares for cash pursuant to the Merger. Such gain will be recognized, but not in excess of the amount of cash, in an amount equal to the difference, if any, between (a) the fair market value of the Acquiror Shares and cash received and (b) the Target Shareholder's adjusted tax basis in the Target Shares surrendered in exchange therefor pursuant to the Merger. If the receipt of cash payments has the effect of a distribution of a dividend to a Target Shareholder, some or all of the gain recognized will be treated as a dividend taxed as ordinary income. If the exchange does not have the effect of a distribution of a dividend, all of the gain recognized would be a capital gain, provided the Target Shares are a capital asset in the hands of the Target Shareholder at the time of the Merger.
(D) The aggregate tax basis of the Acquiror Shares received by a Target Shareholder who exchanges Target Shares in the Merger will be the same as the aggregate tax basis of the Target Shares surrendered in exchange therefor, decreased by the amount of any cash received by such Target Shareholder which is treated as a redemption rather than a dividend and increased by the amount of any non-dividend gain recognized by such Target Shareholder in connection with the Merger.
(E) The holding period of the Acquiror Shares received by a Target Shareholder pursuant to the Merger will include the period during which the Target Shares surrendered therefor were held, provided the Target Shares are a capital asset in the hands of the Target Shareholder at the time of the Merger. In rendering such opinion, such counsel may require and rely upon representations and covenants including those contained in certificates of officers of the Acquiror, Acquiror Sub and the Target and others, including certain Target shareholders who are parties to this Agreement. Failure of the Target or Majority Shareholders to provide such certificates shall constitute a waiver by the Target of the requirement for this opinion.
(x) the Purchaser Shares all actions to be issued taken by the Acquiror or Acquiror Sub in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject opinions, instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable lawTarget, the acting reasonably. The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Agreement of Plan and Merger (Fine Com International Corp /Wa/)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to contemplated hereby shall be performed by it in connection with the Closing is subject to the satisfaction or waiver by the Target of the following conditions at on or prior to the Closing Date:of the following conditions (any of which may be waived in writing by the Target):
(ia) this Agreement the Company and the Merger Sub shall have received performed and complied with all obligations and agreements required to be performed and complied with by it hereunder on or prior to the Requisite Stockholder ApprovalClosing (including, without limitation, those specified in Section 7.1);
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiib) the representations and warranties set forth of the Company contained in (S)4 above this Agreement shall be true and correct in all material respects at and as of the Closing Date, except for Date as if made as of such date (A) changes contemplated by this Agreement, (B) other than those representations and warranties which that address matters only as of a particular date (or only with respect to a specific period of time, which shall have been need only be true and correct as of such datedate or with respect to such period);
(ivc) each there shall be no order, decree or ruling by any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “Governmental Authority”) nor any action, suit, claim or proceeding by or before any Governmental Authority shall be pending, which seeks to restrain, prevent or materially delay or restructure the transactions contemplated by this Agreement or any of the Purchaser other agreements, certificates, instruments and documents contemplated hereby (collectively, the Purchaser Subsidiary shall have performed and complied with all “Ancillary Documents”), or which otherwise questions the validity or legality of its covenants hereunder in all material respects through the Closingany such transactions;
(vd) neither any Order there shall be no statute, rules, regulation or order enacted, promulgated, entered, entered or enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authoritytransactions contemplated hereby which would prohibit or, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of render illegal the transactions contemplated by the Merger; (B) which prohibits the Purchaser's this Agreement or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegalAncillary Documents;
(vie) each of the Purchaser and documents to be delivered by the Purchaser Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(iv) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization Company pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement 7.1 shall have been declared effective so delivered by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject to the provisions of applicable law, the Target may waive, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating Company at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder ApprovalApproval and the number of Dissenting Shares shall not exceed 10% of the total number of outstanding Target Shares;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iii) the representations and warranties set forth in (S)4 Section 5 above shall be true and correct in all material respects at and as of the Closing Date;
(iii) each of the Buyer and the Transitory Subsidiary shall have performed and complied with all covenants required to be performed or complied with by it prior to or on the Closing Date;
(iv) no action, except for 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) changes prevent consummation of any of the transactions contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) each cause any of the Purchaser transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of TAO East to own, or the Buyer to indirectly own, the capital stock of the Surviving Corporation and to control the Purchaser Subsidiary 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 have performed and complied with all of its covenants hereunder be in all material respects through the Closingeffect);
(v) neither any Order shall be enacted, promulgated, entered, enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of the transactions contemplated by the Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegal;
(vi) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 7(b)(i)-(iii) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that vi) this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser Stockholders;Approval; and
(vii) the Merger Target shall be a tax-free merger have received from counsel to the Buyer and the Transitory Subsidiary an opinion in form and substance as set forth in EXHIBIT E attached hereto, addressed to the Target, and dated as of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E)Closing Date;
(viii) all applicable waiting periods (the Employment Agreement shall be in full force and any extensions thereof) under effect at the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) aboveEffective Time;
(ix) the Registration Statement Xxxx Non-Competition Agreement shall have been declared effective by be full force and effect at the SEC under the Securities Act; andEffective Time;
(x) the Purchaser Shares Xxxxxxxx Non-Competition Agreement shall be full force and effect at the Effective Time; and
(xi) Koch, Birnbaum, and Xxxxx shall have delivered to be issued the Target a release in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject to the provisions of applicable law, the form attached hereto as EXHIBIT D. The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 7(b) if it executes 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 Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger Registration Statement shall have received become effective under the Requisite Stockholder ApprovalSecurities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued or proceedings therefor initiated or threatened by the SEC;
(ii) the Purchaser and its Subsidiaries Acquiror Shares that will be issued in the Merger shall have procured all material third-party consents specified in (S)5(b) above which are applicable been approved for listing on the Nasdaq National Market, subject to the Purchaser and its Subsidiariesofficial notice of issuance;
(iii) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) since August 5, 1999, there shall have been no material adverse change in the business, assets, financial condition, operations, results of operations or future prospects of the Acquiror and its Subsidiaries, taken as a whole, which the Disclosure Document does not (i) disclose has occurred, (ii) disclose may occur (other than in the "Risk Factors" section) or (iii) disclose may occur under a caption in the "Risk Factors" section that is referred to in the Disclosure Document other than in the "Risk Factors" section;
(v) each of the Purchaser Acquiror and the Purchaser Subsidiary Acquiror Sub shall have performed and complied with all of its covenants and obligations hereunder in all material respects through the Closing;
(v) neither any Order shall be enacted, promulgated, entered, enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of the transactions contemplated by the Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegal;
(vi) each of the Purchaser Acquiror and the Purchaser Subsidiary Acquiror Sub shall have delivered to the Target a certificate of its Chief Executive Officer and its Chief Financial Officer or general counsel to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 6(b)(i)-(v) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that vii) this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E)Shareholder Approval;
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties Target shall have received all a favorable opinion from Xxxxxx & Whitney LLP, dated as of the Effective Time, as to the matters set forth in Section 4(a) (other material authorizationsthan as to outstanding shares), consents and approvals of governments and governmental agencies referred to in (S)3(d) b), and (S)4(dc) abovehereof and as to the valid issuance and listing on Nasdaq of the Acquiror Shares being issued in the Merger and the effectiveness of the Registration Statement;
(ix) the Registration Statement Target shall have been declared effective received an opinion from Xxxxxx & Xxxxxxx LLP, dated as of the Effective Time, substantially to the effect that, on the basis of the facts, representations and assumptions set forth in such opinions which are consistent with the state of facts existing at the Effective Time, the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and that accordingly:
(A) No gain or loss will be recognized by the SEC under Acquiror, Acquiror Sub or Target as a result of the Securities Act; andMerger.
(B) No gain or loss will be recognized by the shareholders of Target who exchange Target Shares for Acquiror Shares pursuant to the Merger, except with respect to any cash received by such Target shareholders in the Merger.
(C) Gain, if any, but not loss, will be recognized by Target Shareholders upon the exchange of Target Shares for cash pursuant to the Merger. Such gain will be recognized, but not in excess of the amount of cash, in an amount equal to the difference, if any, between (a) the fair market value of the Acquiror Shares and cash received and (b) the Target Shareholder's adjusted tax basis in the Target Shares surrendered in exchange therefor pursuant to the Merger. If the receipt of cash payments has the effect of a distribution of a dividend to a Target Shareholder, some or all of the gain recognized will be treated as a dividend taxed as ordinary income. If the exchange does not have the effect of a distribution of a dividend, all of the gain recognized would be a capital gain, provided the Target Shares are a capital asset in the hands of the Target Shareholder at the time of the Merger.
(D) The aggregate tax basis of the Acquiror Shares received by a Target Shareholder who exchanges Target Shares in the Merger will be the same as the aggregate tax basis of the Target Shares surrendered in exchange therefor, decreased by the amount of any cash received by such Target Shareholder which is treated as a redemption rather than a dividend and increased by the amount of any non-dividend gain recognized by such Target Shareholder in connection with the Merger.
(E) The holding period of the Acquiror Shares received by a Target Shareholder pursuant to the Merger will include the period during which the Target Shares surrendered therefor were held, provided the Target Shares are a capital asset in the hands of the Target Shareholder at the time of the Merger. In rendering such opinion, such counsel may require and rely upon representations and covenants including those contained in certificates of officers of the Acquiror, Acquiror Sub and the Target and others, including certain Target shareholders who are parties to this Agreement. Failure of the Target or Majority Shareholders to provide such certificates shall constitute a waiver by the Target of the requirement for this opinion.
(x) the Purchaser Shares all actions to be issued taken by the Acquiror or Acquiror Sub in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject opinions, instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable lawTarget, the acting reasonably. The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiia) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivb) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(vc) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase of, or payment for, some or all right of the Target Shares illegalto 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);
(vid) immediately prior to the Closing and following completion of the 1:2 reverse stock split, there shall not be greater than 845,000 shares of Common Stock, issued and outstanding of Buyer, and there shall not be any Buyer Derivative Securities outstanding.
(e) Buyer shall have no assets, liabilities or contingent liabilities as of the Closing Date;
(f) Buyer and Buyer’s officers and directors shall be current on all filings with the SEC required under the Securities Exchange Act;
(g) Buyer shall have adopted a stock option plan in the form attached hereto as Exhibit B with substantially similar terms to the existing Target stock option plan and shall have authorized warrants to purchase both preferred and common stock with substantially similar terms as the Target Warrants;
(h) Buyer shall have filed all Tax Returns that are or were required to be filed by or with respect to it, either separately or as a member of a group of companies, pursuant to applicable Legal Requirements, since inception of Buyer;
(i) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSections 6.2(a) -(h) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that j) this Agreement and the Merger shall have received the Requisite Stockholder Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the Purchaser Stockholdersnumber of outstanding Target Shares and Target Preferred Shares on an aggregate basis;
(viik) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizationsthe resignations, consents effective as of the Closing, of each director and approvals officer of governments Buyer and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) of the Registration Statement shall have been declared effective by the SEC under the Securities ActTransitory Subsidiary; and
(xl) the Purchaser Shares all actions to be issued taken by the Buyer and the Transitory Subsidiary in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(b) Section 6.2 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Buyer Shareholder Approval;
(ii) the Purchaser and its Subsidiaries Registration Statement shall have procured all material third-party consents specified in (S)5(b) above which are applicable to become effective under the Purchaser and its SubsidiariesSecurities Act;
(iii) the Buyer Shares that will be issued in the Merger shall have been approved for listing on the electronic Bulletin Board;
(iv) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivv) each of the Purchaser and the Purchaser Subsidiary Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(vvi) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the Mergerright of the Surviving Corporation to own the former assets and to operate the former businesses of the Target, (D) affect adversely the right of the Target to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); or (CE) which makes the purchase ofthere shall not be any judgment, order, decree, stipulation, injunction, or payment for, some or all charge in effect preventing consummation of any of the Target Shares illegaltransactions contemplated by this Agreement;
(vivii) each of the Purchaser and the Purchaser Subsidiary Buyer shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 6(b)(i)-(vi) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that viii) this Agreement and the Merger shall have received the Requisite Target Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) aboveApproval;
(ix) the Registration Statement Target shall have been declared received the resignations, effective by as of the SEC under Closing, of each director and officer of the Securities ActBuyer other than those whom the Target shall have specified in writing at least five business days prior to the Closing; and
(x) the Purchaser Shares all actions to be issued taken by the Buyer in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject opinions, instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to contemplated hereby shall be performed by it in connection with the Closing is subject to the satisfaction or waiver by the Target of the following conditions at on or prior to the Closing Date:of the following conditions (any of which may be waived in writing by the Target):
(ia) this Agreement the Company and the Merger Sub shall have received performed and complied with all obligations and agreements required to be performed and complied with by it hereunder on or prior to the Requisite Stockholder ApprovalClosing (including, without limitation, those specified in Section 7.1);
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiib) the representations and warranties set forth of the Company contained in (S)4 above this Agreement shall be true and correct in all material respects at and as of the Closing Date, except for Date as if made as of such date (A) changes contemplated by this Agreement, (B) other than those representations and warranties which that address matters only as of a particular date (or only with respect to a specific period of time, which shall have been need only be true and correct as of such datedate or with respect to such period);
(ivc) each there shall be no order, decree or ruling by any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “Governmental Authority”) nor any action, suit, claim or proceeding by or before any Governmental Authority shall be pending, which seeks to restrain, prevent or materially delay or restructure the transactions contemplated by this Agreement or any of the Purchaser other agreements, certificates, instruments and documents contemplated hereby (collectively, the Purchaser Subsidiary shall have performed and complied with all “Ancillary Documents”), or which otherwise questions the validity or legality of its covenants hereunder in all material respects through the Closingany such transactions;
(vd) neither any Order there shall be no statute, rules, regulation or order enacted, promulgated, entered, entered or enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authoritytransactions contemplated hereby which would prohibit or, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of render illegal the transactions contemplated by the Merger; (B) which prohibits the Purchaser's this Agreement or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegalAncillary Documents;
(vie) the Company shall have completed the sale of the Company’s capital stock in a private placement which is exempt from registration under the Securities Act in which the gross proceeds to the Company equal or exceed two million five hundred thousand dollars ($2,500,000.00) (the “Financing”); and
(f) each of the Purchaser and documents to be delivered by the Purchaser Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(iv) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization Company pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement 7.1 shall have been declared effective so delivered by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject to the provisions of applicable law, the Target may waive, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating Company at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Issg, Inc.)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiia) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivb) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(vc) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase ofright of the Buyer to own the capital stock of the Surviving Corporation and to control the Surviving Corporation, or payment for, some or all (D) affect adversely the right of the Target Shares illegalSurviving Corporation to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(vid) immediately prior to the Closing, there shall not be greater than 2,500,000 shares of Common Stock, issued and outstanding of Buyer and there shall not be any Buyer Derivative Securities outstanding;
(e) Buyer shall have no assets, liabilities or contingent liabilities;
(f) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSections 6.2(a)-(e) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that g) this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser StockholdersMember Approval;
(viih) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizationsthe resignations, consents effective as of the Closing, of each director and approvals officer of governments Buyer and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) of the Registration Statement shall have been declared effective by the SEC under the Securities ActTransitory Subsidiary; and
(xi) the Purchaser Shares all actions to be issued taken by the Buyer and the Transitory Subsidiary in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(b) Section 6.2 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Aabb Inc)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger Buyer shall have received accepted the Requisite Stockholder Approvaltransfer of the Excluded Target REIT Assets to the Buyer-REIT;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iii) the representations and warranties set forth in (S)4 above of the Buyer if 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, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iviii) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(viv) neither any Order no statute, rule, regulation or other law and no order, decree, stipulation, injunction or charge shall be have been enacted, issued, promulgated, entered, enforced entered or deemed applicable to the Merger nor any other action shall have been taken issued by any governmental authority, administrative agency or court Governmental Entity which is in effect and has the effect of competent jurisdiction (A) which prohibits making the consummation of the transactions contemplated by the Merger; (B) which Merger illegal, materially restricts, prevents or prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation consummation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated hereby, nor shall any proceeding by any Governmental Entity seeking any of the foregoing be pending or threatened;
(v) to the extent DHI has not been liquidated prior to the Closing in accordance with the terms of Section 5(g)(vi) hereof, the Buyer or an Affiliate of the Buyer shall have accepted the purchase by the Merger; Buyer or (C) which makes an Affiliate of the purchase of, or payment for, some or Buyer of all of the Target Shares illegaloutstanding 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, such purchase agreement to include insurance and indemnification provisions similar to Section 5(j) above;
(vi) each of the Purchaser and the Purchaser Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(iv) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser Stockholders;Approval; and
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the XxxxHart-XxxxxScott-Xxxxxx Rodino Act shall have expired or otherwise been terminated xxxx xxxxxxxxxx and the Parties shall have received all other material authorizations, consents consents, and approvals of governments and governmental agencies referred to Governmental Entities necessary for the consummation of the transactions contemplated hereby (including, without limitation, those set forth in (S)3(dSections 3(d) and (S)4(d4(d) above;
(ix) without the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaqimposition of any terms, subject to official notice of issuanceconditions, restrictions or limitations. Subject to the provisions of applicable law, the The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and i. the Merger Target shall have received a copy of the Requisite Sub Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iii) . the representations and warranties set forth in (S)4 Article 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) each of iii. the Purchaser Sub and the Purchaser Subsidiary Parent shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, including to mean the tendering of the Cash Payment and the Contingent Notes;
(v) neither any Order iv. no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase ofright of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or payment for, some or all (D) affect adversely the right of any of the former Subsidiaries of the Target Shares illegalto own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(vi) each of v. the Purchaser and the Purchaser Subsidiary Sub shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivArticle 6(b)(i)-(iv) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that ;
vi. this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser StockholdersApproval;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and . the Parties shall have received all other material authorizations, consents consents, and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) abovethis Agreement or legally required;
(ix) viii. the Registration Statement Target shall have been declared effective by received from counsel to the SEC under Parent and the Securities ActSub, an opinion attached to this Agreement as Exhibit "F", in a form mutually agreeable to the parties hereto, addressed to the Target, and dated as of the Closing Date;
ix. the Stockholders shall have received the Cash Payment and the Contingent Notes;
x. the Parent shall have entered into employment agreements with Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx in a form and on terms acceptable to the parties thereto; and
(x) the Purchaser Shares xi. all actions to be issued taken by the Parent and the Sub in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject opinions, instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(bArticle 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Claimsnet Com Inc)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger Registration Statement shall have received become effective under the Requisite Stockholder ApprovalSecurities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued or proceedings therefor initiated or threatened by the SEC;
(ii) the Purchaser and its Subsidiaries Acquiror Shares that will be issued in the Merger shall have procured all material third-party consents specified in (S)5(b) above which are applicable been approved for listing on the Nasdaq National Market, subject to the Purchaser and its Subsidiariesofficial notice of issuance;
(iii) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) since the date of this Agreement, there shall have been no material adverse change in the business, assets, financial condition, operations, results of operations or future prospects of the Acquiror and its Subsidiaries, taken as a whole;
(v) each of the Purchaser Acquiror and the Purchaser Subsidiary Acquiror Sub shall have performed and complied with all of its covenants and obligations hereunder in all material respects through the Closing;
(v) neither any Order shall be enacted, promulgated, entered, enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of the transactions contemplated by the Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegal;
(vi) each of the Purchaser Acquiror and the Purchaser Subsidiary Acquiror Sub shall have delivered to the Target a certificate of its Chief Executive Officer and its Chief Financial Officer or general counsel to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 6(b)(i)-(v) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that vii) this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E)Shareholder Approval;
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties Target shall have received all a favorable opinion from Xxxxxx & Whitney LLP, dated as of the Effective Time, as to the matters set forth in Section 4(a) (other material authorizationsthan as to outstanding shares), consents and approvals of governments and governmental agencies referred to in (S)3(d) b), and (S)4(dc) abovehereof and as to the valid issuance and listing on Nasdaq of the Acquiror Shares being issued in the Merger and the effectiveness of the Registration Statement;
(ix) the Registration Statement Target shall have been declared effective received an opinion from Xxxxxx & Xxxxxxx LLP, dated as of the Effective Time, substantially to the effect that, on the basis of the facts, representations and assumptions set forth in such opinions which are consistent with the state of facts existing at the Effective Time, the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and that accordingly:
(A) No gain or loss will be recognized by the SEC under Acquiror, Acquiror Sub or Target as a result of the Securities Act; andMerger.
(B) No gain or loss will be recognized by the shareholders of Target who exchange Target Shares for Acquiror Shares pursuant to the Merger, except with respect to any cash received by such Target shareholders in the Merger.
(C) Gain, if any, but not loss, will be recognized by Target Shareholders upon the exchange of Target Shares for cash pursuant to the Merger. Such gain will be recognized, but not in excess of the amount of cash, in an amount equal to the difference, if any, between (a) the fair market value of the Acquiror Shares and cash received and (b) the Target Shareholder's adjusted tax basis in the Target Shares surrendered in exchange therefor pursuant to the Merger. If the receipt of cash payments has the effect of a distribution of a dividend to a Target Shareholder, some or all of the gain recognized will be treated as a dividend taxed as ordinary income. If the exchange does not have the effect of a distribution of a dividend, all of the gain recognized would be a capital gain, provided the Target Shares are a capital asset in the hands of the Target Shareholder at the time of the Merger.
(D) The aggregate tax basis of the Acquiror Shares received by a Target Shareholder who exchanges Target Shares in the Merger will be the same as the aggregate tax basis of the Target Shares surrendered in exchange therefor, decreased by the amount of any cash received by such Target Shareholder which is treated as a redemption rather than a dividend and increased by the amount of any non-dividend gain recognized by such Target Shareholder in connection with the Merger.
(E) The holding period of the Acquiror Shares received by a Target Shareholder pursuant to the Merger will include the period during which the Target Shares surrendered therefor were held, provided the Target Shares are a capital asset in the hands of the Target Shareholder at the time of the Merger. In rendering such opinion, such counsel may require and rely upon representations and covenants including those contained in certificates of officers of the Acquiror, Acquiror Sub and the Target and others, including certain Target shareholders who are parties to this Agreement. Failure of the Target or Majority Shareholders to provide such certificates shall constitute a waiver by the Target of the requirement for this opinion.
(x) the Purchaser Shares all actions to be issued taken by the Acquiror or Acquiror Sub in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject opinions, instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable lawTarget, the acting reasonably. The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Aris Corp/)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Buyer Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iii) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iviii) each of the Purchaser and the Purchaser Subsidiary Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(viv) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase ofright of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or payment for, some or all (D) affect adversely the right of any of the former Subsidiaries of the Target Shares illegalto own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(viv) each of the Purchaser and the Purchaser Subsidiary Buyer shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 6(b)(i)-(iv) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
(xvi) the Purchaser Shares all actions to be issued taken by the Buyer in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject opinions, instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Nucleus Inc)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approvalrequisite buyer stockholder approval, if any;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iii) the representations and warranties set forth in (S)4 ss.4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iviii) each of the Purchaser and the Purchaser Subsidiary Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(viv) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase ofright of the Surviving Corporation to own the former assets, to operate the former businesses, and to control the former Subsidiaries of the Target, or payment for, some or all (D) affect adversely the right of any of the former Subsidiaries of the Target Shares illegalto own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(viv) each of the Purchaser and the Purchaser Subsidiary Buyer shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivss.6(b)(i)-(iv) is satisfied in all respects; provided;
(vi) the Target shall have received from counsel to the Buyer an opinion in form and substance reasonably satisfactory to Target, howeveraddressed to the Target, with respect to (S)6(b)(i), each and dated as of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser StockholdersClosing Date;
(vii) all actions to be taken by the Merger shall be a tax-free merger Buyer in connection with consummation of the Purchaser Subsidiary with transactions contemplated hereby and into all certificates, opinions, instruments, and other documents required to effect the Target transactions contemplated hereby will be reasonably satisfactory in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (form and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(bss.6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Nucleus Inc)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Target at Closing is subject to the Target's satisfaction (compliance with which or the occurrence of which may be waived in writing in whole or in part by the Target) on or before the Closing Date, of the following conditions; provided, the satisfaction or waiver by the Target of any of the following conditions at set forth in this Section shall in no way affect Target's right to indemnification pursuant to Section 8 hereof or prior to the Closing Datesatisfaction or waiver of any other condition precedent:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iii) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivii) each of the Purchaser and the Purchaser Subsidiary Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(viii) neither any Order the Board of Directors of Buyer shall have approved this Agreement in all material respects;
(iv) no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement or (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation (C) which makes the purchase ofand no such injunction, judgment, order, decree, ruling, or payment for, some or all of the Target Shares illegalcharge shall be in effect);
(viv) each of the Purchaser and the Purchaser Subsidiary Buyer shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 7(b)(i)-(iii) is satisfied in all respects; provided;
(vi) the Buyer shall have delivered to the Target a certified copy of the resolutions of the Board of Directors of the Buyer, howeverauthorizing and approving the execution, with respect delivery and performance of this Agreement (and any other agreement to (S)6(b)(ibe delivered by the Target in connection herewith), each issuance of the Purchaser Shares to the Target and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval consummation of the Purchaser Stockholders;transactions contemplated hereby.
(vii) the Merger Target shall be a tax-free merger have received from counsel to the Buyer an opinion in form and substance as set forth in Exhibit 7(b)(viii) attached hereto, addressed to the Target, and dated as of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E)Closing Date;
(viii) all applicable waiting periods (the Target and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act Buyer shall have expired or otherwise been terminated and entered into a mutually agreeable escrow agreement with a third party for the Parties shall have received all other material authorizations, consents and approvals escrow of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;the held back portion of the Purchase Price; and
(ix) the Registration Statement shall have been declared effective all actions to be taken by the SEC under Buyer in connection with consummation of the Securities Act; andtransactions 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 Target.
(x) the Purchaser Shares to be issued in the Merger Target shall have been approved for quotation on Nasdaqexecuted a settlement agreement with Elan Pharma, subject Inc. and Elan International Services Ltd. with respect to official notice satisfaction of issuance. Subject the Target's obligations to the provisions of applicable lawElan Pharma, the Target may waiveInc. and Elan International Services Ltd. pursuant to a certain Asset Purchase Agreement, in whole or in partdated January 13, any condition specified in this (S)6(b) if it executes a writing so stating at or prior to the Closing1997.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing on the Closing Date is subject to satisfaction or waiver by the Target of the following conditions at on or prior to the Closing Datebefore May 1, 2001:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iii) the representations and warranties set forth in (S)4 inss.4 above shall be true correct and correct complete in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivii) each of the Purchaser and the Purchaser Subsidiary Buyer shall have performed and complied with all of its covenants hereunder hereunder, including the Pre-Closing Covenants set forth in ss.5 above, in all material respects through the Closing;
(viii) neither any Order no action, suit, or proceeding commenced by a Person other than Target or its Affiliates shall be enacted, promulgated, entered, enforced pending before any court or deemed applicable to the Merger nor any other action shall have been taken by any governmental authority, quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement or (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation (C) which makes the purchase ofand no such injunction, judgment, order, decree, ruling, or payment for, some or all of the Target Shares illegalcharge shall be in effect);
(viiv) each of the Purchaser and the Purchaser Subsidiary Buyer shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivss.7(b)(i)-(iii) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), v) the Buyer shall have executed and delivered each of an Assignment and Bill of Sale, an Assignment of Intellectual Property and an Assignxxxx of Domain Name, in substantially the Purchaser forms attached hereto as Exhibit A-1, Exhibit A-2 and Exhibit A-3, respectively;
(vi) xxx Xxxxx xxxxx xxve executed and delivered the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and Termination Letter, substantially in the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;form attached hereto as Exhibit B; and
(vii) the Merger Buyer shall be a tax-free merger have executed and delivered each of the Purchaser Subsidiary with and into CPS License Agreement, substantially in the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated form of Exhibit C-1 attached hereto, and the Parties shall have received all other material authorizationsContent License Agreement, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued substantially in the Merger shall have been approved for quotation on Nasdaq, subject to official notice form of issuance. Subject to the provisions of applicable law, the Exhibit C-2 attached hereto; The Target may waive, in whole or in part, waive any condition specified in this (S)6(bss.7(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mim Corp)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to contemplated hereby shall be performed by it in connection with the Closing is subject to the satisfaction or waiver by the Target of the following conditions at on or prior to the Closing Date:of the following conditions (any of which may be waived in writing by the Target):
(ia) this Agreement the Company and the Merger Sub shall have received performed and complied with all obligations and agreements required to be performed and complied with by it hereunder on or prior to the Requisite Stockholder ApprovalClosing (including, without limitation, those specified in Section 7.1);
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiib) the representations and warranties set forth of the Company contained in (S)4 above this Agreement shall be true and correct in all material respects at and as of the Closing Date, except for Date as if made as of such date (A) changes contemplated by this Agreement, (B) other than those representations and warranties which that address matters only as of a particular date (or only with respect to a specific period of time, which shall have been need only be true and correct as of such datedate or with respect to such period);
(ivc) each there shall be no order, decree or ruling by any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “Governmental Authority”) nor any action, suit, claim or proceeding by or before any Governmental Authority shall be pending, which seeks to restrain, prevent or materially delay or restructure the transactions contemplated by this Agreement or any of the Purchaser other agreements, certificates, instruments and documents contemplated hereby (collectively, the Purchaser Subsidiary shall have performed and complied with all “Ancillary Documents”), or which otherwise questions the validity or legality of its covenants hereunder in all material respects through the Closingany such transactions;
(vd) neither any Order there shall be no statute, rules, regulation or order enacted, promulgated, entered, entered or enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authoritytransactions contemplated hereby which would prohibit or, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of render illegal the transactions contemplated by the Merger; (B) which prohibits the Purchaser's this Agreement or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegalAncillary Documents;
(vie) the Target shall have completed the audit of its financial statements in accordance with Item 310 of Regulation S-B; and
(f) each of the Purchaser and documents to be delivered by the Purchaser Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(iv) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization Company pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement 7.1 shall have been declared effective so delivered by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject to the provisions of applicable law, the Target may waive, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating Company at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiia) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivb) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(vc) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase of, or payment for, some or all right of the Target Shares illegalto 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);
(vid) immediately prior to the Closing and following completion of the 1:2 reverse stock split, there shall not be greater than 845,000 shares of Common Stock, issued and outstanding of Buyer, and there shall not be any Buyer Derivative Securities outstanding.
(e) Buyer shall have no assets, liabilities or contingent liabilities as of the Closing Date;
(f) Buyer and Buyer’s officers and directors shall be current on all filings with the SEC required under the Securities Exchange Act;
(g) Buyer shall have adopted a stock option plan in the form attached hereto as Exhibit B with substantially similar terms to the existing Target stock option plan and shall have authorized warrants to purchase both preferred and common stock with substantially similar terms as the Target Warrants;
(h) Buyer shall have filed all Tax Returns that are or were required to be filed by or with respect to it, either separately or as a member of a group of companies, pursuant to applicable Legal Requirements, since inception of Buyer;
(i) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSections 6.2(a)-(h) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that j) this Agreement and the Merger shall have received the Requisite Stockholder Shareholder Approval and the number of Dissenting Shares shall not exceed one percent (1%) of the Purchaser Stockholdersnumber of outstanding Target Shares and Target Preferred Shares on an aggregate basis;
(viik) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizationsthe resignations, consents effective as of the Closing, of each director and approvals officer of governments Buyer and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) of the Registration Statement shall have been declared effective by the SEC under the Securities ActTransitory Subsidiary; and
(xl) the Purchaser Shares all actions to be issued taken by the Buyer and the Transitory Subsidiary in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(b) Section 6.2 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger Registration Statement shall have received become effective under the Requisite Stockholder ApprovalSecurities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued or proceedings therefor initiated or threatened by the SEC;
(ii) the Purchaser and its Subsidiaries Acquiror Shares that will be issued in the Merger shall have procured all material third-party consents specified in (S)5(b) above which are applicable been approved for listing on the Nasdaq National Market, subject to the Purchaser and its Subsidiariesofficial notice of issuance;
(iii) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) since the date of this Agreement, there shall have been no material adverse change in the business, assets, financial condition, operations, results of operations or future prospects of the Acquiror and its Subsidiaries, taken as a whole;
(v) each of the Purchaser Acquiror and the Purchaser Subsidiary Acquiror Sub shall have performed and complied with all of its covenants and obligations hereunder in all material respects through the Closing;
(v) neither any Order shall be enacted, promulgated, entered, enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of the transactions contemplated by the Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegal;
(vi) each of the Purchaser Acquiror and the Purchaser Subsidiary Acquiror Sub shall have delivered to the Target a certificate of its Chief Executive Officer and its Chief Financial Officer or general counsel to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 6(b)(i)-(v) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that vii) this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E)Shareholder Approval;
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties Target shall have received all a favorable opinion from Xxxxxx & Whitney LLP , dated as of the Effective Time, as to the matters set forth in Section 4(a) (other material authorizationsthan as to outstanding shares), consents and approvals of governments and governmental agencies referred to in (S)3(d) b), and (S)4(dc) abovehereof and as to the valid issuance and listing on Nasdaq of the Acquiror Shares being issued in the Merger and the effectiveness of the Registration Statement;
(ix) the Registration Statement Target shall have been declared effective received an opinion from Xxxxxx & Xxxxxxx LLP, dated as of the Effective Time, substantially to the effect that, on the basis of the facts, representations and assumptions set forth in such opinions which are consistent with the state of facts existing at the Effective Time, the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code and that accordingly:
(A) No gain or loss will be recognized by the SEC under Acquiror, Acquiror Sub or Target as a result of the Securities Act; andMerger.
(B) No gain or loss will be recognized by the shareholders of Target who exchange Target Shares for Acquiror Shares pursuant to the Merger, except with respect to any cash received by such Target shareholders in the Merger.
(C) Gain, if any, but not loss, will be recognized by Target Shareholders upon the exchange of Target Shares for cash pursuant to the Merger. Such gain will be recognized, but not in excess of the amount of cash, in an amount equal to the difference, if any, between (a) the fair market value of the Acquiror Shares and cash received and (b) the Target Shareholder's adjusted tax basis in the Target Shares surrendered in exchange therefor pursuant to the Merger. If the receipt of cash payments has the effect of a distribution of a dividend to a Target Shareholder, some or all of the gain recognized will be treated as a dividend taxed as ordinary income. If the exchange does not have the effect of a distribution of a dividend, all of the gain recognized would be a capital gain, provided the Target Shares are a capital asset in the hands of the Target Shareholder at the time of the Merger.
(D) The aggregate tax basis of the Acquiror Shares received by a Target Shareholder who exchanges Target Shares in the Merger will be the same as the aggregate tax basis of the Target Shares surrendered in exchange therefor, decreased by the amount of any cash received by such Target Shareholder which is treated as a redemption rather than a dividend and increased by the amount of any non-dividend gain recognized by such Target Shareholder in connection with the Merger.
(E) The holding period of the Acquiror Shares received by a Target Shareholder pursuant to the Merger will include the period during which the Target Shares surrendered therefor were held, provided the Target Shares are a capital asset in the hands of the Target Shareholder at the time of the Merger. In rendering such opinion, such counsel may require and rely upon representations and covenants including those contained in certificates of officers of the Acquiror, Acquiror Sub and the Target and others, including certain Target shareholders who are parties to this Agreement. Failure of the Target or Majority Shareholders to provide such certificates shall constitute a waiver by the Target of the requirement for this opinion.
(x) the Purchaser Shares all actions to be issued taken by the Acquiror or Acquiror Sub in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject opinions, instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable lawTarget, the acting reasonably. The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Fine Com International Corp /Wa/)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement, the Merger Agreement and the Merger shall have received the Requisite Buyer Stockholder ApprovalApproval and the Buyer's Approval as the sole stockholder of the Transitory Subsidiary;
(ii) the Purchaser Registration Statement and its Subsidiaries any applicable state securities filings and registrations shall be effective under the Securities Act and any applicable state securities laws or regulations at and as of the Effective Time, and no stop order shall have procured all material third-party consents specified in (S)5(b) above which are applicable to been issued by the Purchaser and its SubsidiariesSEC or any state regulatory agency;
(iii) the representations Buyer Shares that will be issued in the Merger shall have been approved for listing on the Nasdaq National Market, subject to official notice of issuance;
(iv) each representation and warranties warranty set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivv) each of the Purchaser and the Purchaser Subsidiary Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(vvi) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasijudicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge could (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; this Agreement to be rescinded following consummation, or (C) which makes materially and adversely affect the purchase of, or payment for, some or all right of the Target Shares illegalSurviving Corporation to own the former assets and to operate the former businesses of the Target; and (D) no such injunction, judgement, order, decree, ruling or charge shall be in effect;
(vivii) each of the Purchaser and the Purchaser Subsidiary Buyer shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 6(b)(i)-(vi) is satisfied in all respects; provided, however, with respect to (S)6(b)(iand Section 6(b)(ix), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(dxiii) and (S)4(dxiv) abovebelow, is satisfied;
(ix) the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject to the provisions of applicable law, the Target may waive, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (View Tech Inc)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Buyer Stockholder Approval;
, and the Buyer shall have complied, in all respects, with the Securities Act, the Securities Exchange Act, and applicable Nevada Law in acquiring such stockholder approval; (ii) the Purchaser and its Subsidiaries Buyer's Information Statement shall have procured all material third-party consents specified in (S)5(b) above which are applicable to become efFective under the Purchaser and its Subsidiaries;
Securities Act; (iii) the Buyer Shares that will be issued in the Merger shall be validly issued under law, fully paid, non-assessable "restricted shares" as that term is de5ned under the Securities Act; (iv) all the representations and warranties set forth in (S)4 ss.4 above shall be true and correct in all material respects at and as of the Closing Date, except for ; (Av) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) each of the Purchaser and the Purchaser Subsidiary Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
; (vvi) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes afFect adversely the purchase ofright of the Surviving Corporation to own the Target's, or payment forBuyer's assets, some to operate their businesses or all of to control the Target Shares illegal;
(viand no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (vii) each of the Purchaser and the Purchaser Subsidiary Buyer shall have delivered to the Target a certificate of af5davit to the effect that each of the conditions specified above in (S)6(b)(i)-(ivss.6(b)(i)-(vi) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this viii)this Agreement and the Merger shall have received the Requisite Target Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
Approval; (ix) that the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
Buyer has presented to Target a fully signed and executed Option Agreement between Target's President (xDavid Bawxxxxx) the Purchaser Shares xxx xxx Xxxxx xxxxxxxxx issuance to be issued in the Merger shall have been approved for quotation on NasdaqDavid Bawarsky 000,000 non-diluting shares of &eely tradable stock of Buyer at an exercise price of $0.15/share, subject to official notice exerciseable immediately upon any dilution of issuance. Subject to the provisions of applicable lawBuyer, the Target may waivepost-merger, during a two year period, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating at or prior to the Closing.exchange for consulting services
Appears in 1 contract
Samples: Merger Agreement (Sherman Jason)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Date:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(bSection 5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iii) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) each of the Purchaser and the Purchaser Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(v) neither any Order shall be enacted, promulgated, entered, enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of the transactions contemplated by the Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegal;
(vi) each of the Purchaser and the Purchaser Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(iv) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject to the provisions of applicable law, the Target may waive, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating at or prior to the Closing.as
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it them in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiia) the representations and warranties set forth in Section 4 of this Agreement (S)4 above shall i) that are not qualified by materiality or Material Adverse Effect, and (ii) that are qualified by materiality or Material Adverse Effect will be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivb) each of the Purchaser Parent and the Purchaser Subsidiary shall Merger Sub will have performed and complied with all of its covenants hereunder contained in this Agreement in all material respects through the Closing;
(vc) neither no action, suit or proceeding will be pending before any Order shall be enactedGovernmental Authority in which an unfavorable injunction, promulgatedjudgment, enteredorder, enforced decree, ruling or deemed applicable to the Merger nor charge would prevent consummation of any other action shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of the transactions contemplated by the Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegalthis Agreement;
(vid) each of the Purchaser Parent and the Purchaser Subsidiary shall Merger Sub will have delivered to the Target a certificate to the effect that each of the conditions specified above in this Section 6.2(a) and (S)6(b)(i)-(ivb) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(viie) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall will have received all other material necessary authorizations, consents and approvals of governments any Governmental Authority, all of which must be final and governmental agencies referred to in (S)3(d) and (S)4(d) abovenon-appealable;
(ixf) the Registration Statement shall Parent will have been declared effective by paid all filing fees and made all filings necessary and appropriate with respect to the SEC HSR Act;
(g) the Parent will have entered into the Escrow Agreement, which must be in full force and effect;
(h) the Parent will have entered into the Paying Agent Agreement, which must be in full force and effect;
(i) each of the Parent and the Merger Sub will have delivered such other documents and instruments as are reasonably necessary or appropriate to effect the consummation of the contemplated transactions or that may be required under any Laws or any agreements to which the Securities ActParent is a party; and
(xj) the Purchaser Shares all actions to be issued in taken by the Parent and the Merger shall have been approved for quotation on NasdaqSub in connection with consummation of the contemplated transactions and all certificates, subject instruments and other documents required to official notice of issuance. Subject effect the contemplated transactions will be reasonably satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(b) if it executes Section 6.2 by providing a writing so stating written waiver to Parent at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing Merger is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iii) the representations and warranties set forth in (S)4 Section 4 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, except for (A) changes contemplated by this Agreementits terms, (B) those representations expressly limited to a specific date, in which case such representation and warranties which address matters only as of a particular date (which warranty shall have been be true and correct as of such date);
(ivii) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary 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;
(viii) neither any Order shall be enactedthe Buyer, promulgated, entered, enforced or deemed applicable to the Merger nor any Transitory Subsidiary and the other action parties thereto shall have been taken by any governmental authority, administrative agency or court of competent jurisdiction (A) which prohibits executed and delivered the consummation of the transactions contemplated by the Merger; (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegalDefinitive Financing Statements;
(viiv) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 6(c)(i)-(iii) and is satisfied in all respects; provided;
(v) the Fairness Opinion shall not have been withdrawn;
(vi) the Target shall have received from counsel to the Buyer and the Transitory Subsidiary an opinion in form and substance substantially as set forth in Exhibit D attached hereto, howeveraddressed to the Target, with respect to (S)6(b)(i), each and dated as of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;Closing Date; and
(vii) the Merger Buyer and the Transitory Subsidiary shall be a tax-free merger of have furnished to the Purchaser Target such other customary documents, certificates or instruments as Target may reasonably request evidencing compliance by the Buyer and the Transitory Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals terms of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuancethis Agreement. Subject to the provisions of applicable law, the The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 6(c) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to contemplated hereby shall be performed by it in connection with the Closing is subject to the satisfaction or waiver by the Target of the following conditions at on or prior to the Closing Date:of the following conditions (any of which may be waived in writing by the Target):
(ia) this Agreement the Company and the Merger Sub shall have received performed and complied with all obligations and agreements required to be performed and complied with by it hereunder on or prior to the Requisite Stockholder ApprovalClosing (including, without limitation, those specified in Section 7.1);
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiib) the representations and warranties set forth of the Company contained in (S)4 above this Agreement shall be true and correct in all material respects at and as of the Closing Date, except for Date as if made as of such date (A) changes contemplated by this Agreement, (B) other than those representations and warranties which that address matters only as of a particular date (or only with respect to a specific period of time, which shall have been need only be true and correct as of such datedate or with respect to such period);
(ivc) each there shall be no order, decree or ruling by any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a “Governmental Authority”) nor any action, suit, claim or proceeding by or before any Governmental Authority shall be pending, which seeks to restrain, prevent or materially delay or restructure the transactions contemplated by this Agreement or any of the Purchaser other agreements, certificates, instruments and documents contemplated hereby (collectively, the Purchaser Subsidiary shall have performed and complied with all “Ancillary Documents”), or which otherwise questions the validity or legality of its covenants hereunder in all material respects through the Closingany such transactions;
(vd) neither any Order there shall be no statute, rules, regulation or order enacted, promulgated, entered, entered or enforced or deemed applicable to the Merger nor any other action shall have been taken by any governmental authoritytransactions contemplated hereby which would prohibit or, administrative agency or court of competent jurisdiction (A) which prohibits the consummation of render illegal the transactions contemplated by the Merger; (B) which prohibits the Purchaser's this Agreement or the Purchaser Subsidiary's ownership or operation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or (C) which makes the purchase of, or payment for, some or all of the Target Shares illegalAncillary Documents;
(vie) the Target shall agree to complete the audit of its financial statements in accordance with Item 310 of Regulation S-B within 74 days of Closing; and
(f) each of the Purchaser and documents to be delivered by the Purchaser Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(iv) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization Company pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement 7.1 shall have been declared effective so delivered by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject to the provisions of applicable law, the Target may waive, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating Company at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiia) the representations and warranties set forth in (S)4 SECTION 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivb) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(vc) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase of, or payment for, some or all right of the Target Shares illegalto 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);
(vid) the Target shall have received a total of One Million Dollars ($1,000,000) in Buyer Debentures from Anthony Silverman or his associates on or before the closing and thx Xxxxx xxx xxx Xxrget shall have mutually agreed in writing as to the sources of the One Million Dollars in financing;
(e) immediately prior to the Closing, there shall not be greater than 2,500,000 shares of Common Stock, issued and outstanding of Buyer and there shall not be any Buyer Derivative Securities outstanding.
(f) Buyer shall have obtained an executed lock-up and escrow agreement in the form attached hereto as EXHIBIT C whereby Anthony Silverman agrees to lock-up the greater of 220,000 Buyer Sxxxxx xx xxxxxx xxrcent (30%) of the total number of Buyer Shares owned by him until one (1) year after the Effective Time;
(g) Anthony Silverman and Thomas Scallen shall each have executed xxx xxxxxxxxx xx Xarget xx xxxxxx xxxxxment in the forms attached hereto as EXHIBITS E AND F whereby Mr. Silverman and Mr. Scallen each agree to escrow 50,000 Buyer Shaxxx xxxxxxxxxly fxxxxxxxx xxe merger (post 30:1 reverse stock split), for a period of three years from the Effective Time;
(h) Buyer shall have no assets, liabilities or contingent liabilities, other than no less than $3,500 of cash reserves that are allocated for payment for fractional shares resulting from the Buyer reverse stock split, and Thomas Scallen shall indemnify Buyer and Target against any exxxxxx xx xxxxility incurred on account of Buyer's office lease in Minneapolis, Minnesota;
(i) Buyer shall have used its commercially reasonable efforts to apply for and obtain a listing for its common stock on the Over-the-Counter Bulletin Board and the Pink Sheets;
(j) Buyer shall be current on all filings with the SEC required under the Securities Exchange Act;
(k) Buyer shall have adopted a stock option plan with substantially similar terms to the existing Target stock option plans and shall have authorized warrants to purchase both preferred and common stock with substantially similar terms as the Target Warrants;
(l) Buyer shall have created preferred stock, designated such that its material terms are substantially identical to that of the Target Preferred Shares;
(m) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSECTIONS 6.2(A)-(L) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that n) this Agreement and the Merger shall have received the Requisite Stockholder Approval and the number of Dissenting Shares shall not exceed five percent (5%) of the Purchaser Stockholdersnumber of outstanding Target Shares and Target Preferred Shares on an aggregate basis;
(viio) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizationsthe resignations, consents effective as of the Closing, of each director and approvals officer of governments Buyer and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) of the Registration Statement shall have been declared effective by the SEC under the Securities ActTransitory Subsidiary; and
(xp) the Purchaser Shares all actions to be issued taken by the Buyer and the Transitory Subsidiary in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(b) SECTION 6.2 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement, the Merger Agreement and the Merger shall have received the Requisite Buyer Stockholder ApprovalApproval and the Buyer's Approval as the sole stockholder of the Transitory Subsidiary;
(ii) the Purchaser and its Subsidiaries Buyer Shares that will be issued in the Merger shall have procured all material third-party consents specified in (S)5(b) above which are applicable been approved for listing on the Nasdaq SmallCap Market, subject to the Purchaser and its Subsidiariesofficial notice of issuance;
(iii) the representations each representation and warranties warranty set forth in (S)4 ss.4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) each of the Purchaser and the Purchaser Subsidiary Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(v) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasijudicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge could (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; this Agreement to be rescinded following consummation, or (C) which makes materially and adversely affect the purchase of, or payment for, some or all right of the Target Shares illegalSurviving Corporation to own the former assets and to operate the former businesses of the Target; and (D) no such injunction, judgement, order, decree, ruling or charge shall be in effect;
(vi) each of the Purchaser and the Purchaser Subsidiary Buyer shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivss.6(b)(i)-(v) and ss.6(b)(vii)-(ix) below, is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholderssatisfied;
(vii) this Agreement, the Merger Agreement and the Merger shall be a tax-free merger of have received the Purchaser Subsidiary with and into the Requisite Target in a reorganization pursuant to Code Section 368(a)(2)(E)Stockholder Approval;
(viii) all applicable waiting periods the Target Director Designees shall be elected directors of the Buyer, contingent only upon the Closing;
(and any extensions thereofix) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents consents, and approvals of governments and governmental agencies referred to in (S)3(dss.3(d) and (S)4(dss.4(h) above;
(ixx) the Registration Statement Target Director Designees shall be elected directors of the Transitory Subsidiary; (xi) both parties shall have completed their due diligence and all outstanding issues relating thereto shall have been declared effective by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaq, subject to official notice of issuance. Subject resolved to the provisions satisfaction of applicable law, the Target may waive, in whole or in part, any condition specified in this (S)6(b) if it executes a writing so stating at or prior to the Closing.Parties;
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(ia) this Agreement and the Merger Registration Statement shall have received become effective under the Requisite Stockholder ApprovalSecurities Act;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiib) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivc) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(vd) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase ofright of the Buyer to own the capital stock of the Surviving Corporation and to control the Surviving Corporation and its Subsidiaries, or payment for, some or all (D) affect adversely the right of any of the Target Shares illegalSurviving 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);
(vie) the Target shall have received a total of Five Hundred Thousand Dollars ($500,000) in debt or equity financing on or before July 1, 2002 and hereby acknowledges already receiving Three Hundred Thousand Dollars ($300,000) as of the date of this Agreement, thereby needing only an additional $200,000;
(f) Buyer shall have closed a reorganization as approved by its shareholders whereby it exchanges all of its intellectual property, including the name "Knowledge Foundations, Inc.," for the redemption of 35,141,618 Buyer Shares. Dr. Richard Ballard and certain other xxxxxxxxxers as specified pursuant to the Separation and Distribution Agreement which shall be substantially in the form attached hereto as Exhibit C;
(g) Immediately prior to the Closing, there shall not be greater than 22,924,072 shares of Common Stock, issued and outstanding of Buyer which shall include: 5,022,100 shares issued prior to the execution of this Agreement and 17,901,972 shares to be issued pursuant to this Agreement to shareholders of Target; as of the Closing, there shall not be any Buyer Derivative Securities outstanding other than a warrant to Pursuit Capital, Inc. to receive 1,666,600 shares of Common Stock of Buyer.
(h) Buyer shall have obtained an executed lock-up and escrow agreement in the form approved by Target whereby (i) Dr. Richard Ballard agrees to esxxxx 000,000 Xxyer Shares owned by him until one (1) year after the Effective Time, (ii) Michael Dochterman agrees to escrox 00,000 Xxxer Shares owned by him until six (6) months after the Effective Time and 50,000 Buyer Shares owned by him until one (1) year after the Effective Time, and (iii) Robert Dietrich agrees to escrow 20,000 Xxxxx Shares owned by him until six (6) months after the Effective Time;
(i) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSections 6.2(a)-(h) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that j) this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement shall have been declared effective by the SEC under the Securities ActApproval; and
(xk) the Purchaser Shares all actions to be issued taken by the Buyer and the Transitory Subsidiary in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(b) Section 6.2 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiia) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivb) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(vc) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase ofright of the Target to own the capital stock of the Surviving Company and to control the Surviving Company, or payment for(D) affect adversely the right of the Surviving Company to own its assets and to operate its businesses (and no such injunction, some judgment, order, decree, ruling, or charge shall be in effect);
(d) the Buyer Shares issued to the Target Securityholders at the Closing, and prior to the Third Party Investment, shall equal not less than 84% of the outstanding Buyer Shares (excluding those shares pledged to Target that are to be returned to Buyer at Closing for cancellation in accordance with Section 5.8 of this Agreement).
(e) Buyer shall be current on all filings with the SEC required under the Securities Exchange Act;
(f) the Buyer shall have procured all of the Target Shares illegalthird party consents specified in Section 5.2 above;
(vig) 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;
(h) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSections 6.2(a)-(f) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(viii) the Merger Target, in its discretion, shall be satisfied that Updates to the Buyer Disclosure Schedule shall not contain any claim, liability or loss that has had, or reasonably could be expected to have a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E)Material Adverse Effect on Buyer;
(viiij) all applicable waiting periods (and any extensions thereof) under No fact or circumstance shall exist that would prevent the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred to in (S)3(d) and (S)4(d) above;
(ix) the Registration Statement shall have been declared effective by the SEC under the Securities ActMerger from qualifying as a 368 Reorganization; and
(xk) the Purchaser Shares all actions to be issued taken by the Buyer and the Transitory Subsidiary in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(b) Section 6.2 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Healthsport, Inc.)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement the Buyer and the Merger Target Stockholders shall have received entered into an Agreement to be Bound to the Requisite Stockholder ApprovalRegistration Rights Agreement in the form attached as Exhibit G, granting the Target Stockholders piggyback registration rights with respect to the Buyer Shares issued to such Target Stockholders pursuant to the Merger;
(ii) the Purchaser Buyer and its Subsidiaries the Target Stockholders shall have procured all material third-party consents specified entered into the Common Stock Purchase Warrant in (S)5(b) above which are applicable the form attached as Exhibit H to be delivered to the Purchaser and its SubsidiariesTarget Stockholders as part of the Merger Consideration as of the Effective Time;
(iii) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iv) each of the Purchaser and the Purchaser Subsidiary Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(v) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase ofright of the Surviving Corporation to own the former assets, or payment for, some or all operate the former business of the Target Shares illegal;Target; and
(vi) each of the Purchaser and the Purchaser Subsidiary Buyer shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSection 6(b)(iii)-(v) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger received the Requisite Stockholder Approval of the Purchaser Stockholders;
(vii) the Merger Buyer shall be a tax-free merger have delivered to Target an opinion of counsel in the Purchaser Subsidiary with form and into substance as set forth in Exhibit I attached hereto, addressed to the Target in a reorganization pursuant to Code Section 368(a)(2)(E)Target, and dated the Closing Date;
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act each Target Stockholder shall have expired or otherwise been terminated entered into an employment agreement with Buyer in form and the Parties shall have received all other material authorizations, consents and approvals of governments and governmental agencies referred substance reasonably acceptable to in (S)3(d) and (S)4(d) abovesuch Target Stockholder;
(ix) all amounts owing on the Registration Statement Target's term loan and line of credit facilities with The Bank of New York dated July 11, 1997 shall have been declared effective repaid by the SEC under the Securities ActBuyer; and
(x) the Purchaser Shares all actions to be issued taken by the Buyer in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject opinions, instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 6(b) if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Aris Corp/)
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger shall have received the Requisite Stockholder Approval;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iiia) the representations and warranties set forth in (S)4 Section 4 above shall be true and correct in all material respects at and as of the Closing Date, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(ivb) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(vc) neither any Order no action, suit, or proceeding shall be enacted, promulgated, entered, enforced pending or deemed applicable to the Merger nor threatened before any other action shall have been taken by any governmental authority, court or quasi-judicial or administrative agency of any federal, state, local, or court of competent foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) which prohibits the prevent consummation of any of the transactions contemplated by the Merger; this Agreement, (B) which prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation of all or cause any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated by the Merger; or this Agreement to be rescinded following consummation, (C) which makes affect adversely the purchase of, or payment for, some or all right of the Target Shares illegalto own the equity of the Surviving Company and to control the Surviving Company, or (D) affect adversely the right of the Surviving Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(vid) each immediately prior to the Closing there shall not be greater than 11,200,224 Buyer Shares, issued and outstanding, no Buyer Derivative Securities outstanding, and no other Buyer Securities outstanding;
(e) Except as shown on Schedule 6.2(e) attached hereto, Buyer shall have no liabilities or contingent liabilities other than those incurred in the ordinary course of business as of the Purchaser Closing Date;
(f) Buyer and Buyer's officers and directors shall be current on all filings with the SEC required under the Securities Exchange Act;
(g) Buyer shall have filed all Tax Returns that are or were required to be filed by or with respect to it, either separately or as a member of a group of companies, pursuant to applicable Legal Requirements, since inception of Buyer;
(h) Buyer shall have entered into an Employment Agreement in the form to be attached as Exhibit B, with these persons set forth on Schedule 6.2(h) attached hereto;
(i) The Buyer and the Purchaser Transitory Subsidiary shall each have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(ivSections 6.2(a)-(h) is satisfied in all respects; provided, however, with respect to ;
(S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that j) this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser StockholdersMember Approval;
(viik) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Parties shall have received all other material authorizationsthe resignations, consents effective as of the Closing, of each director and approvals officer of governments Buyer and governmental agencies referred to in (S)3(d) each manager and (S)4(d) above;
(ix) officer of the Registration Statement shall have been declared effective by the SEC under the Securities ActTransitory Subsidiary; and
(xl) the Purchaser Shares all actions to be issued taken by the Buyer and the Transitory Subsidiary in connection with consummation of the Merger shall have been approved for quotation on Nasdaqtransactions contemplated hereby and all certificates, subject instruments, and other documents required to official notice of issuance. Subject effect the transactions contemplated hereby will be satisfactory in form and substance to the provisions of applicable law, the Target. The Target may waive, in whole or in part, waive any condition specified in this (S)6(b) Section 6.2 if it executes a writing so stating at or prior to the Closing.
Appears in 1 contract
Conditions to Obligation of the Target. The obligation of -------------------------------------- the Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction or waiver by the Target of the following conditions at or prior to the Closing Dateconditions:
(i) this Agreement and the Merger Buyer shall have received accepted the Requisite Stockholder Approvaltransfer of the Excluded Target REIT Assets to the Buyer-REIT;
(ii) the Purchaser and its Subsidiaries shall have procured all material third-party consents specified in (S)5(b) above which are applicable to the Purchaser and its Subsidiaries;
(iii) the representations and warranties set forth in (S)4 above of the Buyer if 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, except for (A) changes contemplated by this Agreement, (B) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date);
(iviii) each of the Purchaser Buyer and the Purchaser Transitory Subsidiary shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;
(viv) neither any Order no statute, rule, regulation or other law and no order, decree, stipulation, injunction or charge shall be have been enacted, issued, promulgated, entered, enforced entered or deemed applicable to the Merger nor any other action shall have been taken issued by any governmental authority, administrative agency or court Governmental Entity which is in effect and has the effect of competent jurisdiction (A) which prohibits making the consummation of the transactions contemplated by the Merger; (B) which Merger illegal, materially restricts, prevents or prohibits the Purchaser's or the Purchaser Subsidiary's ownership or operation consummation of all or any material portion of their or the Target's business or assets, or which compels the Purchaser or the Purchaser Subsidiary to dispose of or hold separate all or any material portion of the Purchaser's or the Purchaser Subsidiary's or the Target's business or assets as a result of the transactions contemplated hereby, nor shall any proceeding by any Governmental Entity seeking any of the foregoing be pending or threatened;
(v) the Buyer shall have accepted the purchase by the Merger; Buyer or (C) which makes an Affiliate of the purchase of, or payment for, some or Buyer of all of the Target Shares illegaloutstanding 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;
(vi) each of the Purchaser and the Purchaser Subsidiary shall have delivered to the Target a certificate to the effect that each of the conditions specified above in (S)6(b)(i)-(iv) is satisfied in all respects; provided, however, with respect to (S)6(b)(i), each of the Purchaser and the -------- ------- Purchaser Subsidiary shall only be required to certify that this Agreement and the Merger shall have received the Requisite Stockholder Approval of the Purchaser Stockholders;Approval; and
(vii) the Merger shall be a tax-free merger of the Purchaser Subsidiary with and into the Target in a reorganization pursuant to Code Section 368(a)(2)(E);
(viii) all applicable waiting periods (and any extensions thereof) under the XxxxHart-XxxxxScott-Xxxxxx Rodino Act shall have expired or otherwise been terminated xxxx xxxxxxxxxx and the Parties shall have received all other material authorizations, consents consents, and approvals of governments and governmental agencies referred to Governmental Entities necessary for the consummation of the transactions contemplated hereby (including, without limitation, those set forth in (S)3(dSections 3(d) and (S)4(d4(d) above;
(ix) without the Registration Statement shall have been declared effective by the SEC under the Securities Act; and
(x) the Purchaser Shares to be issued in the Merger shall have been approved for quotation on Nasdaqimposition of any terms, subject to official notice of issuanceconditions, restrictions or limitations. Subject to the provisions of applicable law, the The Target may waive, in whole or in part, waive any condition specified in this (S)6(bSection 6(b) if it executes a writing so stating at or prior to the Closing.
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