Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub: (a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and (c) There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Inpixon), Merger Agreement (KINS Technology Group, Inc.)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction at or prior to the Closing of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) Fundamental Representations shall be true and correct in all but de minimis respects respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the representations and warranties of the Company Fundamental Representations made pursuant to Section 5.24 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception), other than the first sentence of Section 4.6(a)pursuant to clause (b) thereof, shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations and the representations and warranties set forth in clause (ii) above (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be so true and correct at and as of such date, except except, in the case of this clause (iii) for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) the Company shall have delivered or caused to be delivered to Acquiror all of the items contemplated by Section 2.4(a);
(d) the Company shall have delivered or caused to be delivered to Acquiror the waivers set forth in Section 10.2(d) of the Company Disclosure Letter; and
(ce) There has there shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect after the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (ECP Environmental Growth Opportunities Corp.)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Xxxxxx Sub, in their sole discretion:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casecase of this clause (iii), inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect (provided, however, that none of the Precedent Transactions, including any actions, acquisitions, mergers, reorganizations and similar changes affecting the Company, Acquiror or any of their respective businesses or Affiliates, shall be deemed an inaccuracy or omission regarding any representation or warranty referenced in clauses (i) through (iii), and each such representation and warranty shall be deemed qualified by the Precedent Transactions in all respects);
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such material covenant and failed to cure within ten (10) days after notice (or if earlier, the Agreement End Date); and
(c) There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a No Company Material Adverse EffectEffect shall have occurred on or after the date of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Welsbach Technology Metals Acquisition Corp.)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of except where the Company contained in the first sentence of Section 4.6(a) shall failure to be true and correct would not, individually or in all but de minimis respects as of the Closing Dateaggregate, except with respect to such representations have a Material Adverse Effect on the Business and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary AgreementsAgreement, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company Keystone contained in this Agreement other than the Company Fundamental Representations (disregarding without giving effect to any qualifications and exceptions contained therein relating to "material", "materiality, material adverse effect and Company ," or Material Adverse Effect or any similar on the Business qualification or exceptioncontained in such representations and warranties) shall be true and correct as of the Closing Datedate hereof and as if made anew, except with respect after giving effect to such any changes to the Schedules permitted by Section 5.5 hereof, immediately prior to the Closing; provided, however, representations and warranties which speak made as to an earlier date, which representations and warranties shall of a particular date need only be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;particular date referenced therein; and
(b) Each each of the covenants and agreements of the Company Keystone contained in this Agreement to be performed by Keystone as of or prior to the Closing shall have been performed in all material respects;
(c) Keystone shall have delivered the documents, agreements and instruments required to be delivered by it pursuant to Section 2.4;
(d) Keystone shall have obtained the consent of the holders of the requisite percentage of the Common Shares and the Preferred Shares, each voting as separate classes of securities, to terminate the Shareholders' Agreement and the Registration Rights Agreement, in each case as of the Effective Time of the Merger;
(e) Keystone shall have cancelled all of the Outstanding Options that have not been exercised by the holders thereof;
(f) Keystone shall have caused the Management Agreement to terminate effective as of the Effective Time of the Merger; and
(cg) There has Acquiror shall have received an opinion of Xxxxxx Xxxxxxxx LLP, counsel for Keystone, dated the Closing Date, addressed to Acquiror (and authorizing reliance by the lenders under the Debt Commitment Letter) in form and substance reasonably satisfactory to Acquiror and its counsel, which shall be limited to the opinions set forth on Exhibit G.
(h) Holder Representative shall have executed and delivered the Holder Representative Agreement, and such Holder Representative Agreement shall be in full force and effect;
(i) Acquiror shall have obtained at least $275,000,000 of cash proceeds from the financing transactions sufficient to consummate the transactions on terms and conditions no less favorable in the aggregate to Acquiror than those term and conditions set forth in the term sheets attached to the Debt Commitment Letters;
(j) Acquiror shall have received fully executed UCC-3 termination statements and other termination, pay-offs and/or releases, or, at Acquiror's option, assignments, necessary to terminate, release or assign, as the case may be, all Liens set forth on Schedule 8.2.(j), and payoff letters with respect to all outstanding Funded Indebtedness of Keystone and the Keystone Subsidiaries;
(k) since December 31, 2002, there shall not been have occurred any Event fact, event, or circumstance that has had, or would reasonably be expected to have, individually or in the aggregate, had a Company Material Adverse EffectEffect on the Business; and
(l) the Dissenting Common Shares, if any, shall not include greater than 5% of the Outstanding Common Shares, the Dissenting Preferred Shares, if any, shall not include greater than 5% of the Outstanding Preferred Shares, and the Dissenting Shares, if any, shall not include greater than 5% of the sum of the Outstanding Common Shares, plus the Outstanding Preferred Shares.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Keystone Marketing Services Inc)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger Transactions at the Closing are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each Each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not(without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or another similar materiality qualification set forth therein, other than in Section 3.4(d)(i)) individually or in the aggregate, have not had, and would not reasonably be expected to have have, a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; , except the covenants of the Company under Section 5.1(e) and Section 5.1(m) (and, in respect of the foregoing sections, Section 5.1(o)) shall, to the extent qualified by “materiality,” have been performed in all respects;
(c) There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(d) All approvals, waivers or consents from any third parties set forth and described on Schedule 8.2(d) shall have been obtained;
(e) The Company shall have obtained executed counterparts to the Stockholder Support Agreement and the Lock-Up Agreement from the Company Stockholders and holders of Convertible Equity Instruments together holding at least 90% of the outstanding shares of Company Capital Stock and Convertible Equity Instruments (on a fully-diluted, as-converted to Company Common Stock basis); and
(f) The Company shall have obtained executed counterparts to the Consent of Holder from the holders of Convertible Equity Instruments listed on Schedule 8.2(f).
Appears in 1 contract
Samples: Merger Agreement (CF Finance Acquisition Corp. III)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each Each of the representations and warranties of the Company contained made herein or in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materialityagreement, material adverse effect and Company Material Adverse Effect instrument or any similar qualification or exception) document called for hereunder, shall be true and correct when made and on the Closing Date as though such representations and warranties were made on and as of the Closing Date, Date (except with respect to such for those representations and warranties which speak that are made by their terms solely as to of an earlier date, which representations and warranties shall be true and correct at on and as of such date, ) except for, in each casefor breaches, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to aggregate would not have a Company Material Adverse Effect;Effect on the Company. For purposes of determining whether any breaches, inaccuracies or omissions individually or in the aggregate would have a Material Adverse Effect on the Company, any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be ignored.
(b) Each of the covenants and agreements of the Company to be performed as of or prior to the Closing shall have been performed in all material respects.
(c) The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing Date, certifying that, the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled.
(d) The Company and the Holder Representative shall have executed and delivered to Acquiror and Merger Sub the Escrow Agreement.
(e) Since the date of this Agreement, there shall not have been or occurred any Material Adverse Effect on the Company;
(f) Acquiror shall have received a certificate complying with Treasury Regulation Section 1.897-2(h) that states that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(g) Other Conditions:
(i) Acquiror shall have received the funds contemplated by the Financing;
(ii) the Acquiror shall have received an opinion of Xxxxxx & Xxxxxxx, counsel to the Company, in substantially the form of Annex D hereto;
(iii) the Company shall have caused to be terminated that certain Management Agreement, dated as of November 24, 1999, by and between Panolam Industries International, Inc. and TC Group Management, L.L.C.; and
(civ) There has not been any Event that has hadeach member of the board of directors of the Company and its Subsidiaries shall have resigned, or would reasonably be expected to have, individually or in effective as of the aggregate, a Company Material Adverse EffectEffective Time of the Merger.
Appears in 1 contract
Samples: Merger Agreement (Panolam Industries International Inc)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties each of the Company contained in the first sentence of Section 4.6(a) Fundamental Representations shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iiiii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect materiality and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; andprovided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such covenant and failed to cure within thirty (30) days’ after notice (or if earlier, the Agreement End Date);
(c) There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a No Company Material Adverse EffectEffect shall have occurred between the date of this Agreement and the Closing Date;
(d) All parties to each of the Ancillary Agreements (other than Acquiror) shall have delivered, or caused to be delivered, to Acquiror copies of each of the Ancillary Agreements duly executed by all such parties, and each of the Ancillary Agreements shall be in full force and effect and shall not have been rescinded by any of the parties thereto (other than Acquiror and Merger Sub); and
(e) Other than those persons identified as continuing directors on Section 2.6(b) of the Acquiror Disclosure Letter, all members of the board of managers of the Company and all executive officers of the Company shall have executed written resignations effective as of the Effective Time.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representation and warranties of the Company contained in Sections 4.1, 4.3, 4.4(i), 4.6(a), 4.6(c) (other than with respect to disclosure of the number of Options outstanding) 4.22(c), 4.23 and 4.24 shall be true and correct in all respects, and the representations and warranties of the Company contained in the first sentence of Section 4.6(a) Sections 4.7 and 4.25 shall be true and correct in all but de minimis respects material respects, as of the Closing Date, except with respect to such as if made anew at and as of that time, except, in each case, for representations and warranties which speak as to an earlier date, which representations and warranties shall be so true and correct in all but de minimis respects at and as of such datedate (in each case, except for changes after giving effect to any efforts to cure by the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, Company); and (ii) all remaining representations and warranties of the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) contained in this Agreement shall be true and correct in all material respects, in each case (without giving effect to any materiality or Material Adverse Effect qualifiers contained therein) as of the Closing Date, as if made anew at and as of that time (except with respect to such for representations and warranties which speak as to an earlier date, which representations and warranties shall be so true and correct in all material respects at and as of such date), except for, in each case for the representations and warranties which are the subject of this clause (ii), (x) any inaccuracy or omission that would not reasonably be expected to have a Material Adverse Effect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;Agreement.
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and.
(c) There has not The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a) and Section 9.2(b) have been any Event fulfilled.
(d) Since the date of this Agreement, no event, change or circumstance shall have occurred that has had, or would reasonably be expected to have, either individually or in the aggregate, a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (ASC Holdco, Inc.)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) 4.6 shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which that are contemplated or expressly permitted by this Agreement, the Whizz Purchase Agreement, the Compass AC Merger Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)4.6) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which that are contemplated or expressly permitted by this Agreement, the Whizz Purchase Agreement, the Compass AC Merger Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided that, for purposes of this Section 9.2(a) only, the representations and warranties set forth in Section 4.8(c) and Section 4.9 shall be true and correct solely as of the date of this Agreement, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; provided that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such material covenant and failed to cure within twenty (20) days after notice (or if earlier, the Agreement End Date); and
(c) There has not been any Event All conditions to the closing of each of the Company Add-On Acquisitions shall be satisfied or waived (other than those conditions that has hadby their terms are to be satisfied at the closing of each such transaction, but subject to the satisfaction or would reasonably waiver thereof and other than the occurrence of the Effective Time) and each of the Company Add-On Acquisitions shall be expected prepared to have, individually or in be consummated immediately after the aggregate, a Company Material Adverse EffectClosing.
Appears in 1 contract
Samples: Merger Agreement (ACE Convergence Acquisition Corp.)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, that, for purposes of this Section 9.2(a) only, the representations and warranties set forth in Section 4.8(c) and Section 4.9 shall be true and correct solely as of the date of this Agreement, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, further, that for purposes of this Section 9.2(a), no Event that is contemplated by the Pre-Closing Restructuring Plan shall be deemed to constitute an inaccuracy in or breach of any such representations and warranties;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such material covenant and failed to cure within twenty (20) days after notice (or if earlier, the Agreement End Date); provided, further, that no action that is contemplated by the Pre-Closing Restructuring Plan may be deemed to constitute nonperformance of such material covenant; and
(c) There has not The Pre-Closing Restructuring shall have been any Event that has had, or would reasonably be expected completed as of immediately prior to have, individually or the Closing in accordance with the aggregate, a Company Material Adverse EffectPre-Closing Restructuring Plan.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp. II)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) 4.6 shall be true and correct in all but de minimis respects as of the Closing DateDate as though made on and as of such date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated by (except with respect to the first sentence of Section 6.1) or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)4.6) shall be true and correct in all material respects, in each case as of the Closing DateDate as though made on and as of such date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated by (except with respect to the first sentence of Section 6.1) or expressly permitted by this Agreement or the Ancillary Agreements Agreements, (iii) the representation and warranty of the Company contained in Section 4.23 shall be true and correct in all respects as of the Closing Date as though made on and as of such date and (iiiiv) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations and the representation and warranty set forth in Section 4.23 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing DateDate as though made on and as of such date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and
(c) There has not been any Event that has had, or and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, that, for purposes of this Section 9.2(a) , no Event that is expressly contemplated by the Pre-Closing Restructuring Plan shall be deemed to constitute an inaccuracy in or breach of any such representations and warranties;
(b) Each of the covenants of the Company to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects; provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed or complied with if the Company has failed to perform or comply with any such covenant in any material respect and failed to cure such failure to perform or comply within twenty (20) days after notice of such breach (or if earlier, three (3) Business Days prior to the Agreement End Date); and
(c) The Pre-Closing Restructuring shall have been completed prior to the Closing.
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Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger Mergers are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary AgreementsAgreement, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date), except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, Date (except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date), except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; andprovided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such material covenant and failed to cure within thirty (30) days after written notice thereof from Acquiror (or if earlier, 5 Business Days prior to the Agreement End Date);
(c) The Restated Certificate shall have been duly filed and accepted by the Secretary of State of the State of Delaware and shall be in effect, and the Note Conversion, Warrant Settlement and Preferred Stock Conversion shall have occurred or will occur immediately prior to the Effective Time; and
(d) There has shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect after the date of this Agreement that is continuing.
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Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained Fundamental Representations and the representation and warranty set forth in the first sentence of Section 4.6(a4.24(a) each shall be true and correct in all but de minimis respects respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the representations and warranties of the Company Fundamental Representations (other than the first sentence of contained in Section 4.6(a)4.24(b) and Section 4.24(c) each shall be true and correct in all material respects, in each case respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations and the respresentations and warranties set forth in Section 4.24 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect materiality and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; andprovided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such covenant and failed to cure within thirty (30) days’ after notice (or if earlier, the Agreement End Date);
(c) There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a No Company Material Adverse EffectEffect shall have occurred between the date of this Agreement and the Closing Date;
(d) All parties to each of the Ancillary Agreements (other than Acquiror) shall have delivered, or caused to be delivered, to Acquiror copies of each of the Ancillary Agreements duly executed by all such parties;
(e) The PIPE Investment shall have been consummated;
(f) The Payoff Letters shall have been delivered to Acquiror and shall remain in full force and effect; and
(g) Each of the Company Warrant Settlement, the Convertible Note Conversion and the Company Preferred Conversion shall have been consummated such that, immediately prior to the Closing, no Company Preferred Stock, nor securities convertible into or exercisable for Company Preferred Stock, shall be outstanding.
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Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which which, if permitted by applicable Law, may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company Parties contained in the first sentence of Section 4.6(a) shall be true and correct in all but respects, other than for de minimis respects inaccuracies, as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but respects, other than for de minimis respects inaccuracies, at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, and (iii) each of the representations and warranties of the Company Parties contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casecase in this clause (iii), inaccuracies or omissions that where the failure of any such representation to be so true and correct has not had, and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company Parties required by this Agreement and the Ancillary Agreements to be performed or complied with as of or prior to the Closing shall have been performed or complied with by the Company Parties in all material respects; and
(c) There has not been any Event that has hadThe Company Parties shall have delivered, or would reasonably caused to be expected delivered, to have, individually or Acquiror the documents set forth in the aggregate, a Company Material Adverse EffectSection 2.4(a).
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Conditions to Obligations of Acquiror and Merger Sub. The obligations of Parent, Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The Each of the representations and warranties of the Company contained in the first sentence of Section 4.6(a) this Agreement shall be true and correct in all but de minimis material respects (except with respect to any representation or warranty qualified as to materiality or words of similar import, which must be true and correct in all respects) as of the Closing Datedate hereof and as of the Closing, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except forand, in each case, except for inaccuracies or omissions that would not, individually or in the aggregate, not reasonably be expected to have a Company Material Adverse Effect;.
(b) Each of the covenants and agreements of the Company or Holdings to be performed as of or prior to the Closing shall have been performed in all material respects; and, except in each case for changes after the date hereof which are contemplated or expressly permitted by this Agreement.
(c) The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing, certifying that the conditions specified in Section 9.1 (as they relate to the Company) and in Section 9.2(a) and 9.2(b) have been fulfilled.
(d) The Company and Holdings shall have executed and delivered to Acquiror and Merger Sub the Escrow Agreement.
(e) Holdings, on behalf of itself and its Subsidiaries, shall have delivered a release of all claims against the Company and its Subsidiaries arising prior to the Closing (other than any claims (i) arising under Section 6.4, (ii) relating to this Agreement, the Transition Services Agreement, the Sourcing Agreements or the transactions contemplated hereby and thereby or (iii) relating to the Relizon Trade Payables and the Relizon Debt).
(f) The Company and its Subsidiaries shall have consummated the Excluded Business Transfer.
(g) There has shall not been have occurred any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(h) The Company and Relizon shall have executed and delivered to Acquiror and Merger Sub the Transition Services Agreement.
(i) If, on the Closing Date, Acquiror has irrevocably offered to each employee listed on Schedule 7.6 to enter into the Severance and Non-Compete Agreements, the employment agreements listed on Schedule 7.6 shall have been terminated.
(j) The Company shall have delivered the notices and requests of consents required to be delivered to the customers listed on Schedule 9.2(j) and provided copies of such notices and requests to Acquiror.
(k) The Company shall have delivered to Acquiror a payoff letter executed by the agents or representatives of the holders of the Closing Date Funded Debt in form reasonably satisfactory to Acquiror pursuant to which such agent or representative undertakes that, upon payment by the Company of the Funded Debt in an amount equivalent to the amount of the Estimated Funded Debt, all such Funded Debt shall have been paid in full and all Liens securing such Funded Debt shall be promptly released and/or terminated.
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Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, and (iiiii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casecase in this clause (ii), inaccuracies or omissions that have not had, and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and
(c) There has not been any Event that has hadThe Company shall have delivered, or would reasonably caused to be expected delivered, to have, individually or Acquiror the documents set forth in the aggregate, a Company Material Adverse EffectSection 2.4(a).
Appears in 1 contract
Samples: Merger Agreement (Khosla Ventures Acquisition Co. II)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger and the transactions contemplated herein are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger SubAcquiror:
(a) (i) The representations and warranties of the Company contained set forth in Section 4.1 (Company Organization), Section 4.2 (Subsidiaries) other than the first last sentence of thereof, Section 4.3 (Due Authorization), Section 4.6(a) shall be true and correct in all but de minimis respects as (Capitalization of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, Company)and Section 4.16 (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)Brokers’ Fees) shall be true and correct in all material respects, in each case respects as of the Closing Date, except with respect to Date (other than such representations and warranties which speak as that expressly relate to an earlier a specific date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements ); and (iiiii) each of the representations and warranties of the Company contained set forth in this Agreement Article IV other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exceptionthose set forth above in Section 9.2(a)(i) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” or similar qualifier) as of the Closing DateDate as though made on and as of the Closing Date (other than any representation or warranty that expressly relates to a specific date, which representation and warranty shall be so true and correct on the date so specified), except with respect to in the case of this clause (ii), where the failure of such representations and warranties which speak as to an earlier date, which representations and warranties shall be so true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants Company and its Subsidiaries shall have performed or complied with in all material respects each of the Company covenants under this Agreement required to be performed as of by them at or prior to the Closing pursuant to the terms hereof;
(c) No Company Material Adverse Effect shall have been performed in all material respectsoccurred since the date of this Agreement; and
(cd) There has not been any Event that has hadThe Company shall have delivered, or would reasonably caused to be expected to havedelivered, individually or duly executed copies of those agreements and documents set forth in the aggregateSection 2.4(a), a Company Material Adverse EffectSection 2.4(d)(ii) and Section 2.4(e).
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Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror ACQUIROR and Merger Sub to consummate, consummate or cause to be consummated, consummated the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror ACQUIROR and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each Each of the representations and warranties of the Company SPD contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct on the date hereof and (as to those representations and warranties not qualified by reference to materiality, in all material respects) as of the Closing DateClosing, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct if made at and as of such datethat time, except for, in and each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants and agreements of the Company SPD to be performed as of or prior to the Closing shall have been performed in all material respects; and.
(b) SPD shall have delivered to ACQUIROR a certificate signed by the chief executive officer of SPD, dated the Closing, certifying that, to the best of the knowledge and belief of such officer, the conditions specified in subsection 8.2
(a) have been fulfilled.
(c) There has not been any Event that has hadAny consent, waiver, approval, license, or other authorization from, or filing with, any Person other than a Governmental Authority required for the consummation of the Merger or for the enjoyment by SPD and/or its Subsidiaries of the benefits of any Contract or other arrangement with such Person after the Merger (including, without limitation, any consent of landlord required under any lease to which SPD and/or any Subsidiary is a party) shall have been obtained or made, except where the failure to obtain such consent would not have a material adverse effect on the business, operations or financial condition of SPD and its Subsidiaries taken as a whole.
(d) SPD and the Holder Representative shall have executed and delivered to ACQUIROR and Merger Sub the Indemnification and Adjustment Escrow Agreements.
(e) ACQUIROR shall have received an opinion, dated as of the Closing Date, from XxXxxxxx & English, LLP substantially in the form of Annex D.
(f) The form and substance of all actions, proceedings, instruments and documents required to consummate the transactions contemplated by this Agreement shall be satisfactory in all reasonable respects to ACQUIROR and its counsel.
(g) Seller shall have delivered to ACQUIROR a certificate(s) in form and substance reasonably satisfactory to ACQUIROR, duly executed and acknowledged, certifying any facts that would exempt the transactions contemplated hereby from withholding pursuant to the provisions of the Foreign Investment in Real Property Tax Act.
(h) Between the date of this Agreement and the Closing, there shall have been no material adverse change (or any event that would reasonably be expected to have, individually or result in such change) in the aggregatecondition (financial or otherwise), results of operation, prospects, business, assets or properties of SPD and its Subsidiaries;
(i) ACQUIROR shall have entered in employment agreements on terms reasonably satisfactory to it (including covenants not to compete) with each of the individuals listed in amended Schedule 8.2(i) attached to this Agreement;
(j) Each holder of SPD Shares and Options shall have provided an acknowledgement, in a Company Material Adverse Effectform reasonably satisfactory to ACQUIROR, of his or its indemnification obligations, and other payment obligations pursuant to Section 1.4(d), under this Agreement [(provided, however, that the holders of SPD Shares may at their sole option determine voluntarily, and agree with ACQUIROR, to fund directly, on a pro rata basis, that portion of the indemnification obligations and other payment obligations pursuant to Section 1.4(d) of the holders of SPD Options which is not paid out of the Indemnification Escrow Amount and the Adjustment Escrow Amount, and thereafter to seek reimbursement from the holders of SPD Options for such amounts; in such case, the acknowledgement required by this Section 8.1(j) shall be required to be supplied only by the holders of SPD Shares)];
(k) ACQUIROR shall have been provided with evidence reasonably satisfactory to it that no holder of SPD Shares shall have exercised his or its dissenters rights.
Appears in 1 contract
Samples: Agreement and Plan of Merger (L 3 Communications Corp)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations and the representations and warranties of the Company in Section 4.24 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casecase of this clause (iii), inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;Effect and (iv) the representations and warranties of the Company contained in Section 4.24 shall be true and correct in all respects as of the Closing Date; and
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and
(c) There has provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been any Event that performed if the Company has hadmaterially breached such material covenant and failed to cure within twenty (20) days after notice (or if earlier, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectAgreement End Date).
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Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties Each of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, and (iiiii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; andTable of Contents
(c) There has shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse Effect.Effect after the date of this Agreement that is continuing; and
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) each shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, (ii) the representations and warranties of the Company contained in Section 4.6(a) and Section 4.7(a) shall be true and correct other than de minimis inaccuracies as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct other than de minimis inaccuracies at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations and the representations and warranties set forth in Section 4.6(a) and Section 4.7(a) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect materiality and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; andprovided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such covenant and failed to cure within thirty (30) days’ after notice (or if earlier, the Agreement End Date);
(c) There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a No Company Material Adverse EffectEffect shall have occurred between the date of this Agreement and the Closing Date and be continuing; and
(d) The Company shall have effectuated the Company Security Conversion, the Warrant Event and the Burkhan Conversion Event.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each Each of the representations and warranties of the Company in Section 3.1 (with respect to the representations and warranties contained in this Agreement other than the first and second sentences of such Section 3.1 only), Section 3.3, Section 3.4 (with respect to conflicts with the Certificate of Incorporation or Bylaws of the Company Fundamental Representations (disregarding any qualifications only) and exceptions contained therein relating to materialitySection 3.6, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) the representations and warranties of the Holder Representative set forth in Section 11.4, shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing DateDate as though then made (provided that any such representation and warranty that addresses matters only as of a certain date shall be so true and correct in all respects only as of that certain date), except with respect in each case determined without regard to such qualifications as to materiality or Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, and (ii) each of the other representations and warranties which speak as to an earlier date, which representations and warranties of the Company set forth in Article III shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though then made (provided that any such representation and warranty that addresses matters only as of a certain date shall be so true and correct in all respects only as of that certain date, except for), in each casecase determined without regard to qualifications as to materiality or Material Adverse Effect, inaccuracies or omissions that except to the extent the failure of any such representations and warranties to be true and correct has not resulted in, and would notnot reasonably be expected to result in, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;Effect on the Company and its Subsidiaries, taken as a whole.
(b) Each of the covenants and agreements of the Company required by this Agreement to be performed as of or prior to the Closing shall have been performed in all material respects; and.
(c) There has not The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing Date, certifying that the conditions specified in Section 9.2(a) and Section 9.2(b) have been any Event that has had, fulfilled.
(d) The Company and the Holder Representative shall have executed and delivered to Acquiror and Merger Sub each of the other Transaction Documents required to be delivered by the Company and/or the Holder Representative on or would reasonably be expected prior to have, individually or the Closing Date.
(e) Acquiror shall have received the proceeds of the financings described in the aggregateDebt Financing Commitment or the Alternative Financing.
(f) Acquiror shall have received a certificate executed by the Company and reasonably acceptable to Acquiror establishing that no Tax is required to be withheld on payments hereunder pursuant to Section 1445 of the Code.
(g) Between the date hereof and the Closing Date, there shall not have been a Company Material Adverse EffectEffect on the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Merger Agreement (Rexnord Corp)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, ; (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;; and
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and
(c) There has provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been any Event that performed if the Company has hadfailed to cure within twenty (20) days after notice (or if earlier, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectAgreement End Date).
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the First Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The Each of the representations and warranties of the Company contained in Sections 4.1, 4.2, 4.3, 4.6 and 4.7(b) (the first sentence “Company Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Section 4.6(a) 4.6, which shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreement, and (iiiii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and;
(c) There has The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled;
(d) The Escrow Agreement shall have been duly executed by all parties other than Acquiror and Merger Sub;
(e) Since the date of this Agreement through the Closing Date, there shall not have been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.; and
Appears in 1 contract
Samples: Merger Agreement (GP Investments Acquisition Corp.)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger Mergers are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, that, for purposes of this Section 9.2(a) only, the representations and warranties set forth in Section 4.8(c) and Section 4.9 shall be true and correct solely as of the date of this Agreement, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; andprovided, that for purposes of this Section 9.2(b), (i) a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such material covenant and failed to cure within twenty (20) days after notice (or if earlier, the Agreement End Date) and (ii) no action that is contemplated by the Pre-Closing Restructuring Plan may be deemed to constitute nonperformance of such material covenant;
(c) The Pre-Closing Restructuring shall have been completed prior to the Closing; and
(d) There has shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect after the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp. III)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The Each of the representations and warranties of the Company and the representations and warranties of the Company Principal Shareholders contained in the first sentence of Section 4.6(a) this Agreement shall be true and correct in all but de minimis respects both on the date hereof and as of the Closing DateClosing, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects if made anew at and as of that time (except for representations and warranties made as of a specific date, which shall remain true and correct as of such date), except except, in each case, (i) for changes after the date of this Agreement hereof which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, and (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to for such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each failures of the representations and warranties of the Company contained in this Agreement other than and the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating Principal Shareholders to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would notthat, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect;.
(b) Each of the covenants and agreements of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and.
(c) There has not The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing, certifying that, to the knowledge and belief of such officer, the conditions specified in Sections 8.2(a) and 8.2(b) hereof have been any Event that has hadfulfilled.
(d) The Company shall have delivered to Acquiror evidence reasonably satisfactory to Acquiror of the termination of (i) the Amended and Restated Management Agreement, dated January 1, 2004, by and between the Company, TC Group Management, L.L.C. and GE Capital Equity Investments, Inc., (ii) the Shareholder Voting and Control Agreement, dated as of August 31, 1999, by and among the Holder Representative, GE Capital Equity Investments, Inc. and the Company (the “Shareholder Agreement”), (iii) the Board Representation Agreement by and between MPI Holdings, L.L.C. and the Company (the “Board Representation Agreement”), and (iv) the Registration Rights Agreement, dated as of August 31, 1999, by and among MPI Holdings, L.L.C., GE Capital Equity Investments, Inc. and the Company (the “Registration Rights Agreement”).
(e) The Holder Representative and the Escrow Agent shall have executed and delivered to Acquiror the Adjustment Escrow Agreement and the Indemnification Escrow Agreement, and the Holder Representative shall have executed and delivered to Acquiror the Investor Rights Agreement.
(f) The Company shall have delivered or would reasonably caused to be expected delivered to have, individually or Acquiror the following:
(i) The resignations of all of the directors of the Company’s Board of Directors of the Company.
(ii) Lock-up agreements for each Company Principal Shareholder in the aggregate, form of Annex D (each a “Lock-up Agreement”)
(iii) Shareholder releases from each Company Material Adverse EffectPrincipal Shareholder in the form of Annex E (each a “Shareholder Release”)
(iv) The opinion or opinions of counsel to the Company in the form of Annex G-1.
(g) The Dissenting Shares shall not represent more than five percent (5%) of the outstanding shares of Company Common Stock on the Closing Date.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first and second sentences of Section 4.6(a) and the first sentence of Section 4.6(a4.6(c) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak Date as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at though made on and as of such date (or in the case of representations and warranties that address matters only as of a particular date, except for changes after the date as of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreementssuch date), (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effects and Company Material Adverse Effects or any similar qualifications or exceptions) shall be true and correct in all material respects, in each case case, as of the Closing Date, except with respect to such representations and warranties which speak Date as to an earlier date, which representations and warranties shall be true and correct in all material respects at though made on and as of such date (or in the case of representations and warranties that address matters only as of a particular date, except for changes after the date as of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements such date), and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations Representations, the representations and warranties referenced in Section 9.2(a)(i) and the representation and warranty referenced in Section 4.22 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the date of the Closing Date, except with respect to such representations and warranties which speak Date as to an earlier date, which representations and warranties shall be true and correct at though made on and as of such date, (or in the case of representations and warranties that address matters only as of a particular date, as of such date) except for, in each case, inaccuracies or omissions that have not had, and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects; and
(c) There has Since the date of this Agreement, there shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect that is continuing.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) Fundamental Representations each shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, (ii) the representations and warranties of the Company contained in Section 4.6 and Section 4.7 shall be true and correct other than de minimis inaccuracies as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct other than de minimis inaccuracies at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations and the representations and warranties set forth in Section 4.6 and Section 4.7 (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect materiality and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such covenant and failed to cure within thirty (30) days’ after notice (or if earlier, the Agreement End Date); and
(c) There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a No Company Material Adverse EffectEffect shall have occurred between the date of this Agreement and the Closing Date.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each Each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding without taking into account any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company materiality or Material Adverse Effect or any similar qualification or exception) qualifiers therein shall be true and correct in all respects both on the date hereof and as of the Closing Date(or, except with respect to in the case of any such representations and warranties which speak as that expressly relate to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for), in each casecase as if made anew at and as of that time, inaccuracies or omissions that except as would not, individually or in the aggregate, reasonably be expected to not have a Company Material Adverse Effect;
(b) Each , and each of the covenants and agreements of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and.
(b) The stockholders of the Company shall have taken all necessary action to authorize, approve and adopt this Agreement and the transactions contemplated hereby in accordance with the DGCL.
(c) There has The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 8.1 (as they relate to the Company) and in subsection 8.2(a) have been fulfilled.
(d) Acquiror shall have received evidence reasonably satisfactory to it that the obligations of the Company and the Subsidiaries with respect to contracts with TC Group or its Affiliates described in Schedule 8.2(d) have been terminated without liability to the Company or its Subsidiaries following the Effective Time.
(e) Since the date of this Agreement, there shall not have been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(f) The Holder Representative shall have executed and delivered to Acquiror the Adjustment Escrow Agreement.
(g) The Holder Representative shall have executed and delivered to Acquiror the Indemnification Escrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (Medical Staffing Network Holdings Inc)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section each of Sections 4.6(a), 4.6(b), and 4.6(c) and Sections 4.6(d) and 4.7(b) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date, except with respect to such representations and warranties which speak Date as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at though made on and as of such date (or, in the case of representations and warranties that address matters only as of a particular date, except for changes after the date as of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreementssuch date), (ii) the Company Fundamental Representations (other than the representations and warranties of the Company contained in the first sentence of each of Sections 4.6(a), 4.6(b), and 4.6(c) and Section 4.6(a4.6(d) and 4.7(b)) shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing Date, except with respect to such representations and warranties which speak Date as to an earlier date, which representations and warranties shall be true and correct in all material respects at though made on and as of such date (or, in the case of representations and warranties that address matters only as of a particular date, except for changes after the date as of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements such date), and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the date of this Agreement and as of the Closing Date, except with respect to such representations and warranties which speak Date as to an earlier date, which representations and warranties shall be true and correct at though made on and as of such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), except for, in each case, inaccuracies or omissions that have not had and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;.
(b) Each of the covenants of the Company to be performed or complied with as of or prior to the Closing shall have been performed or complied with in all material respects; and.
(c) There has Since the date of this Agreement, there shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse Effect; and
(d) The Company shall have delivered (or cause to have been delivered) each of the Closing deliverables to be delivered by it pursuant to Section 2.4(a).
Appears in 1 contract
Samples: Merger Agreement (Xos, Inc.)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger Mergers are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) and Section 4.6(b) shall be true and correct in all but de minimis respects as of the Closing Datedate of this Agreement, except with respect to such representations and warranties which speak as to of an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a) and Section 4.6(b)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to of an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to of an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;Effect ;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; respects; provided, that for purposes of this clause (b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such material covenant and failed to cure within thirty (30) days after written notice thereof from Acquiror (or if earlier, five (5) Business Days prior to the Agreement End Date); and
(c) There has shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect after the date of this Agreement that is continuing.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger Transactions are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, date (except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the any Ancillary Agreements Agreement) and (iiiii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company shall in all material respects have performed and complied with all covenants required by this Agreement to be performed as of or complied with by the Company at or prior to the Closing Closing;
(c) since the date hereof, no Company Material Adverse Effect shall have occurred and be continuing;
(d) the Company shall have delivered to Acquiror and Merger Sub a certificate, dated as of the Closing Date, signed by a duly authorized officer of the Company, stating that the conditions specified in Section 9.2(a), Section 9.2(b) and Section 9.2(c) have been performed in all material respectssatisfied; and
(ce) There has not been any Event that has hadthe Company (or its applicable Affiliates) shall have executed and delivered to Acquiror each of the Ancillary Agreements to which the Company or its applicable Affiliates, or would reasonably as applicable, will be expected to have, individually or in the aggregate, a Company Material Adverse Effectparty.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each Each of the representations and warranties of the Company contained in this Agreement (without giving effect to any Company Material Adverse Effect, materiality or similar non-monetary qualification (other than knowledge) therein), other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materialityof the Company, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions such failures to be true and correct that have not had, and would not, individually or in the aggregate, not reasonably be expected to have have, a Company Material Adverse Effect;. The Fundamental Representations of the Company shall be true and correct as of the Closing Date, as if made anew at and as of that time (except to the extent that any such representation and warranty speaks expressly as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date).
(b) Each of the covenants of the Company and the Primary Holders to be performed as of or prior to the Closing shall have been performed in all material respects; and.
(c) There has The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing Date, certifying that the conditions specified in Section 8.2(a) and Section 8.2(b) have been fulfilled.
(d) Either (i) the PUCT shall have determined (by order or otherwise in writing) that it will not review the Transaction or (ii) the PUCT TTHC Approval shall have been obtained and be in full force and effect; provided that, notwithstanding anything to the contrary included elsewhere in this Agreement, the PUCT TTHC Approval shall not be deemed to have been obtained or be in full force and effect for purposes of the condition set forth in this Section 8.2(d)(ii) if the PUCT TTHC Approval, to the extent obtained, imposes any Event that has hadmaterial, adverse term or would reasonably be expected to havecondition, Governmental Order, sanction or requirement that, individually or in the aggregate, would, or would be reasonably expected to, have a material adverse effect on, or change in, a condition (financial or otherwise), business, assets, Liabilities or results of operations of (1) the Company and the Subsidiary (including the Subsidiary’s interest in Oncor), taken as a whole or (2) Acquiror and its subsidiaries (including the Company and the Subsidiary (including the Subsidiary’s interest in Oncor)), taken as a whole, provided that, for the purposes of this clause (2) Acquiror and its subsidiaries (including the Company and the Subsidiary) shall be deemed to be a consolidated group of entities that is the size and scale of 20% of Oncor and its subsidiaries.
(e) Each Primary Holder shall have delivered to Acquiror either (i) a notice of nonrecognition treatment pursuant to Treasury Regulation Section 1.1445-2(d)(2), and in the manner described in Treasury Regulation Section 1.1445-2(d)(2)(iii), certifying that, with respect to the Transactions, such Primary Holder is a foreign government that is not subject to taxation upon the disposition of United States real property interests, or (ii) a certificate of non-foreign status, executed by such Primary Holder, that complies with Treasury Regulation Section 1.1445-2(b)(2).
(f) The number of Dissenting Shares shall not exceed 1% of the outstanding shares of Common Stock immediately prior to the Effective Time.
(g) The Company Stockholder Approval shall have been obtained and shall be in full force and effect and shall not have been amended.
(h) In the event less than all of the holders of Common Stock entitled to vote on or otherwise Consent to the Merger under the Organizational Documents of the Company and the DGCL participate in the Company Stockholder Approval, the Company shall have provided its stockholders the notice pursuant to Sections 228(e) and 262(d)(2) of the DGCL that the Company Stockholder Approval was obtained and that appraisal rights are available and 20 days shall have passed since the date such notice was mailed to the Company’s stockholders.
(i) The Company shall have delivered to Acquiror releases in the form of Annex C duly executed by (i) holders of at least 99% of the outstanding shares of Common Stock, (ii) each director of the Company, to the extent appointed by the Primary Holders, (iii) each officer of the Company and the Subsidiary, and (iv) each director of Oncor, to the extent appointed by the Subsidiary, in each case, for any such person as of the date hereof and any person who prior to the Closing becomes such a stockholder, director (other than any director of the Company not appointed by the Primary Holders) or officer, releasing the Company, the Subsidiary and Oncor from any claims that such stockholder, officer or director may have against the Company, the Subsidiary or Oncor as of the Closing, on the terms therein.
(j) The Company shall have delivered to Acquiror duly executed resignations (in form and substance reasonably satisfactory to Acquiror), effective as of the Effective Time, of (i) all directors of the Company, to the extent appointed by the Primary Holders, (ii) all officers of the Company or the Subsidiary and (iii) all directors of Oncor appointed by the Subsidiary.
(k) The Company shall own 100% of the Equity Interests of the Subsidiary and the Subsidiary shall own the Oncor Units, in each case free and clear of all Liens (other than those imposed by their respective Organizational Documents or restrictions on transfer under any applicable federal or state securities laws).
(l) Neither the Company nor the Subsidiary has any Excluded Liabilities other than (i) Liabilities that individually or in the aggregate do not exceed $200,000 and (ii) Liabilities relating to Actions involving the Company or the Subsidiary that arise during the Interim Period and that seek only monetary Damages; provided, however, that the Acquiror Indemnified Parties shall be entitled to seek indemnification from the Primary Holders for any such Excluded Liabilities and damages relating thereto pursuant to Section 10.2(b).
(m) Since the date of this Agreement, there shall not have been a Company Material Adverse Effect.
(n) Each Ancillary Shareholder Agreement shall be in full force and effect in its entirety on the Closing Date (except to the extent that the TTHC Transferred Restriction Waiver may have become void, been terminated or expired in accordance with the express terms thereof prior to the Closing Date).
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casecase of this clause (iii), inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such material covenant and failed to cure within ten (10) days after notice (or if earlier, the Agreement End Date); and
(c) There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a No Company Material Adverse EffectEffect shall have occurred on or after the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Welsbach Technology Metals Acquisition Corp.)
Conditions to Obligations of Acquiror and Merger Sub. The respective obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction (or, to the extent permitted by applicable Law, waiver by Acquiror and Merger Sub), as of the Closing, of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than (i) each of Section 5.1 (Company Organization), Section 5.3 (Due Authorization), clause (a) of Section 5.4 (No Conflict), Section 5.6 (Capitalization of the Company Fundamental Representations Company), Section 5.7 (Capitalization of Subsidiaries) and Section 5.17 (Broker’s Fees) shall be true and correct (disregarding any qualifications and exceptions contained therein relating limitation or exception as to materiality, material adverse effect and or Company Material Adverse Effect or any similar qualification set forth therein) in all material respects as of the Closing as though then made, except to the extent that any such representation or exceptionwarranty expressly speaks as of an earlier time, in which case such representation or warranty shall be true and correct (disregarding any limitation or exception as to materiality, material adverse effect or Company Material Adverse Effect or similar qualification set forth therein) in all material respects as of such earlier time, (ii) Section 5.10 (Absence of Changes) shall be true and correct in all respects as of the Closing Date, except with respect to such Date as though then made and (iii) Article V (other than the representations and warranties which speak addressed by the preceding clause (i)) shall be true and correct (disregarding any limitation or exception as to materiality, material adverse effect or Company Material Adverse Effect or similar qualification set forth therein) as of the Closing as though then made, except, (A) where the failure of any such representation or warranty to be so true and correct does not constitute a Company Material Adverse Effect or (B) to the extent that any such representation or warranty expressly speaks as of an earlier datetime, in which case such representation or warranty shall be true and correct (disregarding any limitation or exception as to materiality, material adverse effect or Company Material Adverse Effect or similar qualification set forth therein) as of such earlier time, except where the failure of any such representation or warranty to be so true and correct does not constitute a Company Material Adverse Effect; provided that the failure of any representation or warranty of the Company contained in Article V (other than the representations and warranties shall addressed by the preceding clause (i)) to be true and correct at and as of such datethe Closing as a result of the taking or omission of any action required or expressly permitted to be taken or omitted, except foras applicable, under this Agreement or any Ancillary Agreement in each casecompliance with the provisions hereof or thereof (as they may be amended, inaccuracies supplemented or omissions that would not, individually otherwise modified prior to the Closing in accordance with the terms hereof or thereof) shall not be taken into account in determining whether the aggregate, reasonably be expected to have a Company Material Adverse Effectcondition set forth in this Section 10.2(a)(iii) has been satisfied;
(b) Each of the covenants of the Company shall have performed or complied with in all material respects all agreements and covenants required under this Agreement to be performed as of or complied with by it at or prior to the Closing Closing;
(c) there shall not have occurred any Company Material Adverse Effect after the date of this Agreement that is continuing;
(d) the Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 10.2(a), Section 10.2(b) and Section 10.2(c) have been performed in all material respectssatisfied; and
(ce) There has the Company Securityholder Support Agreements shall be in full force and effect and shall not have been rescinded by any Event of the parties thereto; provided that has had, or would reasonably such agreements shall be expected to have, individually or terminated upon the Merger Effective Time in the aggregate, a Company Material Adverse Effectaccordance with their terms.
Appears in 1 contract
Samples: Merger Agreement (B. Riley Principal 150 Merger Corp.)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each Each of the representations and warranties of the Company Agencourt contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true true, correct and, to the extent specifically required therein, complete in all material respects both on the date hereof and correct as of the Closing DateClosing, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct if made anew at and as of that time (except for representations and warranties made as of a specific date, which shall remain true, correct and, to the extent specifically required therein, complete in all material respects as of such date), except for, in and each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants and agreements of the Company Agencourt to be performed as of or prior to the Closing shall have been performed in all material respects; and, except for changes after the date hereof which are contemplated or expressly permitted by this Agreement.
(b) Agencourt shall have delivered to Acquiror a certificate signed by an officer of Agencourt, dated the Closing, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 8.2(a) have been fulfilled. The Holder Representative shall have executed and delivered each of the Escrow Agreement and the Stockholders Agreement to Acquiror and Merger Sub.
(c) There has At the Effective Time of the Merger there shall be no Dissenting Stockholders or the Holders will have agreed with Acquiror in writing to instruct the Exchange Agent to pay to the Escrow Agent from the Funding Amount and not been any Event that has had, or would reasonably be expected distribute to have, individually or the Holders the difference between the aggregate amount demanded by the Dissenting Stockholders for all of the Dissenting Shares and the product of (i) the Cash Per Fully Diluted Common Share and (ii) the number of Dissenting Shares.
(d) Each of the Founders and the Current Chairman shall have executed and delivered to Acquiror a Non-Competition Agreement in the aggregateform of Exhibit E attached hereto (collectively, a Company Material Adverse Effectthe “Non-Competition Agreements”).
(e) Acquiror and Merger Sub shall have received an opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, dated as of the Effective Time of the Merger, substantially in the form of Exhibit F.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The respective obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction (or, to the extent permitted by applicable Law, waiver by Acquiror and Merger Sub), as of the Closing, of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than (i) Section 5.6 (Capitalization of the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exceptionCompany) shall be true and correct in all respects (except for de minimis inaccuracies) as of the Closing Date, as though made on and as of the Closing Date (except with respect to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects (except for de minimis inaccuracies) as of such earlier date), (ii) each of Section 5.1 (Company Organization), Section 5.3 (Due Authorization), clause (a) of Section 5.4 (No Conflict), Section 5.10 (Absence of Changes), and Section 5.17 (Brokers’ Fees) shall be true and correct in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), (iii) Section 5.7 (Capitalization of Subsidiaries) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth herein) in all material respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), and (iv) the remainder of Article V shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth herein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties which speak to be true and correct, taken as a whole, does not constitute a Company Material Adverse Effect; provided that the failure of any representation or warranty of the Company contained in Article V to an earlier date, which representations and warranties shall be true and correct at and as of such datethe Closing as a result of the taking or omission of any action required or expressly permitted to be taken or omitted, except foras applicable, under this Agreement or any Ancillary Agreement in each casecompliance with the provisions hereof or thereof (as they may be amended, inaccuracies supplemented or omissions that would not, individually otherwise modified prior to the Closing in accordance with the terms hereof or thereof) shall not be taken into account in determining whether the aggregate, reasonably be expected to have a Company Material Adverse Effectcondition set forth in this Section 10.2(a)(iv) has been satisfied;
(b) Each of the covenants of the Company shall have performed or complied with in all material respects all agreements and covenants required under this Agreement to be performed as of or complied with by it at or prior to the Closing Closing;
(c) there shall not have been performed in all occurred any Company Material Adverse Effect after the date of this Agreement the material respectsadverse effects of which are continuing; and
(cd) There has not the Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 10.2(a), Section 10.2(b) and Section 10.2(c) have been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectsatisfied.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement (as modified by the Company Disclosure Letter) or the Ancillary Agreements, ; (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing Date as if made on the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement (as modified by the Company Disclosure Letter) or the Ancillary Agreements Agreements; and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects, provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such material covenant and failed to cure within twenty (20) days after notice (or if earlier, the Agreement End Date); and
(c) There has Since the date of this Agreement, there shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect that is continuing.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) 4.6 shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)4.6) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;; provided, that, for purposes of this Section 9.2(a) only, the representations and warranties set forth in Section 4.8(c) and Section 4.9 shall be true and correct solely as of the date of this Agreement, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; and
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and
(c) There has provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been any Event that performed if the Company has hadmaterially breached such material covenant and failed to cure within twenty (20) days after notice (or if earlier, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectAgreement End Date).
Appears in 1 contract
Samples: Merger Agreement (ACE Convergence Acquisition Corp.)
Conditions to Obligations of Acquiror and Merger Sub. The respective obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction (or, to the extent permitted by applicable Law, waiver by Acquiror and Merger Sub), as of the Closing, of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The each of the representations and warranties of the Company contained in (i) Section 5.6(a), Section 5.6(e) and the first sentence sentences of clauses (b), (c) and (d) of Section 4.6(a5.6 (Capitalization of the Company) shall be true and correct in all but de minimis respects as of the Closing Dateas though then made, except with respect to the extent that any such representations and warranties which speak representation or warranty expressly speaks as to of an earlier datetime, in which representations and warranties case such representation or warranty shall be true and correct (disregarding any limitation or exception as to materiality, material adverse effect or Company Material Adverse Effect or similar qualification set forth therein) in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreementsearlier time, (ii) each of Section 5.1 (Company Organization), Section 5.3 (Due Authorization), clause (a) of Section 5.4 (No Conflict), Section 5.6 (Capitalization of the Company Fundamental Representations Company) (other than the first sentence representations and warranties contained in Section 5.6 that are identified in the preceding clause (i)), Section 5.7 (Capitalization of Subsidiaries) and Section 4.6(a)5.17 (Broker’s Fees) shall be true and correct (disregarding any limitation or exception as to materiality, material adverse effect or Company Material Adverse Effect or similar qualification set forth therein) in all material respects as of the Closing as though then made, except to the extent that any such representation or warranty expressly speaks as of an earlier time, in which case such representation or warranty shall be true and correct (disregarding any limitation or exception as to materiality, material adverse effect or Company Material Adverse Effect or similar qualification set forth therein) in all material respects as of such earlier time, (iii) Section 5.10 (Absence of Changes) shall be true and correct in all material respects, in each case respects as of the Closing Date, except with respect to such Date as though then made and (iv) Article V (other than the representations and warranties which speak as to an earlier dateaddressed by the preceding clause (i), which representations and warranties (ii) or (iii)) shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating limitation or exception as to materiality, material adverse effect and or Company Material Adverse Effect or any similar qualification set forth therein) as of the Closing as though then made, except, (A) where the failure of any such representation or exceptionwarranty to be so true and correct does not constitute a Company Material Adverse Effect or (B) to the extent that any such representation or warranty expressly speaks as of an earlier time, in which case such representation or warranty shall be true and correct (disregarding any limitation or exception as to materiality, material adverse effect or Company Material Adverse Effect or similar qualification set forth therein) as of the Closing Datesuch earlier time, except with respect where the failure of any such representation or warranty to such be so true and correct does not constitute a Company Material Adverse Effect; provided that the failure of any representation or warranty of the Company contained in Article V (other than the representations and warranties which speak as addressed by the preceding clause (i), (ii) or (iii)) to an earlier date, which representations and warranties shall be true and correct at and as of such datethe Closing as a result of the taking or omission of any action required or expressly permitted to be taken or omitted, except foras applicable, under this Agreement or any Ancillary Agreement (including in each caseconnection with the Pre-Closing Recapitalization) in compliance with the provisions hereof or thereof (as they may be amended, inaccuracies supplemented or omissions that would not, individually otherwise modified prior to the Closing in accordance with the terms hereof or thereof) shall not be taken into account in determining whether the aggregate, reasonably be expected to have a Company Material Adverse Effectcondition set forth in this Section 10.2(a)(iv) has been satisfied;
(b) Each of the covenants of the Company shall have performed or complied with in all material respects all agreements and covenants required under this Agreement to be performed as of or complied with by it at or prior to the Closing Closing;
(c) there shall not have been performed in all occurred any Company Material Adverse Effect after the date of this Agreement the material respectsadverse effects of which are continuing; and
(cd) There has not the Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 10.2(a), Section 10.2(b) and Section 10.2(c) have been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectsatisfied.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in Section 4.1, Section 4.2(a), the first sentence of Section 4.2(b), Section 4.3, Section 4.4(a), Section 4.6 (other than the first sentence of Section 4.6(a) and the first sentence of Section 4.6(b)) and Section 4.24(b) shall be true and correct in all but de minimis material respects as of the Closing Date, except with respect to such representations and warranties which that speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iiiii) each of the representations and warranties of the Company contained in the first sentence of Section 4.6(a) and the first sentence of Section 4.6(b) shall be true and correct in all respects other than de minimis inaccuracies as of the Closing Date, except with respect to such representations and warranties that speak as of an earlier date, which representations and warranties shall be true and correct in all respects other than de minimis inaccuracies at and as of such date, and (iii) each other representation and warranty of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to of an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casecase in this clause (iii), inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;; and
(b) Each of the The Company shall have complied in all material respects with its covenants of the Company and agreements required to be performed as of or prior to the Closing shall have been performed in all material respects; and
(c) There has not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectClosing.
Appears in 1 contract
Samples: Merger Agreement (One)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditionsconditions on or prior to the Closing Date, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The Each of the representations and warranties of the Company contained in the first sentence of Section 4.6(a) this Agreement that are qualified as to materiality or Material Adverse Effect shall be true and correct in all but de minimis respects both on the date hereof and as of the Closing DateClosing, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects if made anew at and as of such datethat time, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) that are not so qualified shall be true and correct as of the Closing Date, in all material respects (except with respect to such for (i) representations and warranties which speak made as to an earlier of a specific date, which shall remain true and correct in all material respects as of that date and (ii) the representations and warranties shall be true set forth in Section 2.11(a)), and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants and agreements of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and, except, in each case, for changes after the date hereof which are contemplated or expressly permitted by this Agreement.
(b) The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Sections 8.2(a) and (k) have been fulfilled.
(c) There has not been any Event that has had, or would reasonably be expected The Holder Representative shall have executed and delivered to have, individually or Acquiror the Escrow Agreement.
(d) The employees of the Company set forth in Schedule 8.2(d) (the "Key Employees") shall have entered into (1) employment agreements with the Surviving Corporation in the aggregateform attached hereto as Exhibit 8.2(d)(1) (the "Employment Agreements"), (2) Stock Purchase and Shareholder Agreements with Acquiror and the Surviving Corporation in the form attached hereto as Exhibit 8.2(d)(2) (the "Stock Purchase Agreements") and (3) the Restricted Stock Agreements with Acquiror in the form attached hereto as Exhibit 8.2(d)(3) (the "Restricted Stock Agreements").
(e) Counsel to the Company shall have delivered legal opinions in the forms attached hereto as Exhibit 8.2(e).
(f) The Company shall have delivered certified organizational documents and certificates of good standing (i) issued by the Department of Consumer and Industry Services, Corporation Division of the State of Michigan for the Company and (ii) issued by the state of organization for each Subsidiary, dated not more than five business days prior to the Closing Date with a bring-down good standing certificate dated as of the Closing Date (or verbal confirmation).
(g) The Company shall have delivered a certificate executed by the Secretary of the Company, dated as of the Closing Date, certifying resolutions adopted by the Company's board of directors relating to the transactions contemplated by this Agreement.
(h) The Third Party Consents required under the Company Material Contracts which are listed on Schedule 8.2(h) shall have been obtained on terms and conditions reasonably satisfactory to Acquiror.
(i) The Acquiror shall have received pay-off acknowledgements and releases ("Payment Acknowledgements") executed by the holders of the Retired Company Debt in form and substance reasonably satisfactory to the Acquiror to the effect that (i) the aggregate principal and interest owed by the Company with respect to the Retired Company Debt equals a specified sum plus accrued interest through the Closing, (ii) upon payment of the amounts specified by such holders in such Payment Acknowledgements, the Company shall cease to have any liability or obligation to such holders and (iii) all Liens securing such Retired Company Debt will be released promptly upon such payment.
(j) All Liens, other than Permitted Liens, against the Company, any of its Subsidiaries or any of their respective assets or properties shall have been released, including, without limitation, those Liens listed on Schedule 8.2(j)(i) hereto, but excluding those liens listed on Schedule 8.2(j)(ii).
(k) Since the date of this Agreement, there shall have been no Material Adverse EffectEffect on the Company and its Subsidiaries, taken as a whole.
(l) The Company Principal Shareholders shall have complied in all material respects with all of the terms of the Registration Rights Agreement that are capable of being complied with prior to the Closing Date; provided, that if there is no Stock Merger Consideration pursuant to Section 1.3(a) or (b) hereof, this condition shall be deemed to have been satisfied.
(m) All of the employee loans set forth on Schedule 2.9 shall have been repaid or cancelled.
(n) The plan with respect to the SARs listed on Schedule 2.3(b) shall have been terminated without the requirement of any payment to any holders of rights thereunder.
(o) All agreements set forth on Schedule 2.3(b) in response to Sections 2.3(b)(iii)-(vi), inclusive, other than the Stock Option Agreements (which pertain to Options that shall no longer be exercisable by their terms at the Effective Time of the Merger) shall have been terminated.
(p) The Management Agreement between Entertainment Publications Operating Company and T.C. Group, L.L.C. shall have been terminated.
(q) Each of the Company Principal Shareholders shall have executed and delivered to Acquiror a representation letter and release dated as of the Closing Date, in the form attached as Exhibit 8.2(q)(i) hereto (the "Company Principal Shareholder Representation Letter"), and in the event that the conditions set forth in Section 8.1(d) or (e) are not applicable or are waived, the Non-Optionholders holding at least 80% of the outstanding Company Shares held by Non-Optionholders shall have executed and delivered to Acquiror a Non-Optionholder Representation Letter dated as of the Closing Date, in the form attached as Exhibit 8.2(q)(ii) hereto (the "Non-Optionholder Representation Letter").
(r) There shall not have been a suspension or material limitation in trading in securities generally on NASDAQ or, if the Acquiror Common Stock is then listed on NYSE, on NYSE, at any time during the five trading day period immediately preceding the Closing Date or on the Closing Date; provided, that if there is no Stock Merger Consideration pursuant to Section 1.3(a) or (b) hereof, this condition shall be deemed to have been satisfied.
(s) The Company shall have provided the Exchange Agent with a schedule showing the allocation of the Cash Merger Consideration and the Stock Merger Consideration among the Holders.
(t) Each Shareholder that is an Affiliate (as such term is defined in Rule 144 of the Act) of the Company shall deliver a letter in form and substance reasonably satisfactory to Acquiror and such Affiliate representing that such Affiliate will sell the shares of Acquiror Common Stock received by such Affiliate in the Merger either (i) in accordance with the restrictions set forth in paragraph (d) of Rule 145 of the Act or (ii) pursuant to the S-3 Registration Statement.
(u) The Company shall have provided Acquiror with a schedule showing the allocation of the Employee Bonuses.
(v) If Acquiror has elected to deliver the Stock Merger Consideration with an Advisor-Arranged Trade pursuant to Section 3.2 of the Registration Rights Agreement, the S-3 Registration Statement shall have been declared effective by the SEC and shall continue to be effective on the Closing Date.
(w) The form and substance of all actions, proceedings, instruments and documents required to consummate the transactions contemplated by this Agreement shall be satisfactory in all reasonable respects to Acquiror and its counsel.
Appears in 1 contract
Samples: Merger Agreement (Usa Interactive)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) The Principal Stockholders and the Lock-up Stockholders shall have executed and delivered the Company Stockholder Letter;
(b) (i) The Each of the representations and warranties of the Company contained in Sections 4.1, 4.2, 4.3, 4.6 and 4.7(b) (the first sentence “Fundamental Representations”) of this Agreement shall be true and correct in all material respects, except for Section 4.6(a) 4.6, which shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreement, and (iiiii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, as if made anew at and as of that time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, (x) inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect and (y) changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement;
(bc) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects;
(d) The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(b) and Section 9.2(c) have been fulfilled;
(e) The Escrow Agreement shall have been duly executed by all parties other than Acquiror and Merger Sub; and
(cf) There has Since the date of this Agreement through the Closing Date, there shall not have been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (GP Investments Acquisition Corp.)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, that, for purposes of this Section 9.2(a) only, the representations and warranties set forth in Section 4.8(c) and Section 4.9 shall be true and correct solely as of the date of this Agreement, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and
(c) There has shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect after the date of this Agreement.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction at or prior to the Closing of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iiiii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be so true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects;
(c) The Company Warrants Termination shall have occurred; and
(cd) There has shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect after the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Revolution Acceleration Acquisition Corp)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each Each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct in all material respects both on the date hereof and as of the Closing DateClosing, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct if made anew at and as of such datethat time, except for, in and each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants and agreements of the Company to be performed as of or prior to the Closing shall have been performed duly performed, except in all material respects; andeach case for changes after the date hereof which are contemplated or permitted by this Agreement.
(b) The Company shall have delivered to Acquiror a certificate signed, on behalf of the Company, by an officer of the Company, dated the Closing, certifying that, to the best of the knowledge and belief of such officer, the conditions specified in Section 8.1, as they relate to the Company, and subsection 8.2(a) have been fulfilled.
(c) There has Any consent required for the consummation of the Merger under any agreement, contract or license described in an annex or schedule hereto or for the continued enjoyment by the Company and its Subsidiaries of the benefits of any agreement, contract or license described in an annex or schedule hereto after the Merger shall have been obtained, except where the failure to obtain such consent would not been have a material adverse effect on the business, operations or financial condition of the Company and its Subsidiaries taken as a whole, it being understood that any Event that has hadnovations or consents required in connection with the Government Contracts or subcontracts thereunder need not be obtained prior to Closing.
(d) At the Effective Time of the Merger, (i) the aggregate number of shares of Common Stock held by Dissenting Stockholders, if any, shall not exceed five percent of the total number of shares of Common Stock then outstanding and (ii) the aggregate number of shares of Preferred Stock held by Dissenting Stockholders, if any, shall not exceed five percent of the total number of shares of Preferred Stock then outstanding.
(e) Acquiror shall have received an opinion, dated as of the Closing Date, from Lathxx & Xatkxxx xxxstantially in the form of Annex C.
(f) The form and substance of all actions, proceedings, instruments and documents required to consummate the transactions contemplated by this Agreement shall be satisfactory in all reasonable respects to Acquiror and its counsel.
(g) Acquiror shall have received not less than $125,000,000 gross proceeds from an offering of senior unsecured notes, or would reasonably other similar instrument.
(h) Other than the exercise by Dissenting Stockholders of their appraisal rights under the DGCL, no legal action or other claim shall be expected to have, individually pending or in the aggregate, a Company Material Adverse Effect.threatened before or by
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each casecase of this clause (iii), inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and
(c) There has provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been any Event that performed if the Company has hadmaterially breached such material covenant and failed to cure within ten (10) days after notice (or if earlier, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.Agreement End Date);
Appears in 1 contract
Samples: Merger Agreement (Welsbach Technology Metals Acquisition Corp.)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger transactions contemplated by this Agreement are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The Each of the representations and warranties of the Company Holdings contained in the first sentence of Section 4.6(a) this Agreement, without taking into account any materiality or Material Adverse Effect or knowledge qualifiers therein, shall be true and correct in all but de minimis respects both on the date hereof and as of the Closing Date(except that any such representation or warranty which speaks, except with respect to such representations and warranties which speak as to an earlier dateby its terms, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the a specific date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (time other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement hereof or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materialityClosing, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Datesuch date, except with respect to such representations and warranties which speak as to an earlier dateSection 2.15 which, which representations and warranties notwithstanding the last paragraph thereof, shall be true and correct both on the date hereof and as if made on the Closing Date), with the same effect as if made on the Closing Date at and as of such date, the Closing except for, in each case, inaccuracies or omissions that as would not, not individually or in the aggregate, aggregate reasonably be expected to have a Company Material Adverse Effect;
(b) Each , and each of the covenants and agreements of the Company Holdings to be performed or complied with by Holdings as of or prior to the Closing shall have been performed or complied with by Holdings in all material respects; and.
(b) The holders of Holdings Common Stock shall have taken all necessary action to authorize, approve and adopt this Agreement and the transactions contemplated hereby in accordance with the DGCL.
(c) There has Holdings shall have delivered to Acquiror a certificate signed by an officer of Holdings, dated the Closing, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 8.1 (as they relate to Holdings) and in subsection 8.2(a) have been fulfilled.
(d) Holder Representative shall have executed and delivered to Acquiror and Merger Sub the Adjustment Escrow Agreement.
(e) Holder Representative and the Escrow Agent shall have executed and delivered to Acquiror and Merger Sub the Indemnification Escrow Agreement.
(f) Holdings shall deliver to Acquiror a duly executed certificate certifying that the transactions contemplated herein are exempt from withholding under Section 1445 of the Code and the Treasury Regulations thereunder.
(g) Holdings shall have obtained the consent of Burlington Northern Santa Fe Corporation to the transactions contemplated hereby.
(h) Each director of Holdings shall have resigned effective as of the Closing Date and each of the officers of Holdings and each Subsidiary thereof as shall be designated by Acquiror in writing to the Holder Representative not less than three days prior to the Closing Date shall have resigned or been any Event that has had, or would reasonably be expected to have, individually or removed effective as of the Closing Date.
(i) Horizon Lines shall have received debt financing substantially as set forth in the aggregateFinancing Letter (or the Merger Lenders shall be prepared to consummate the debt financing substantially as set forth in the Financing Letter and fund the full amount thereof (other than the amount of the revolving credit facility thereunder), subject only to the consummation of the transactions contemplated hereby).
(j) There shall not have occurred and be continuing a Company Material Adverse EffectChange.
(k) Acquiror shall have received an opinion from Xxxxxx & Xxxxxxx LLP, counsel for Holdings, addressed to Acquiror and Merger Sub with respect to the matters set forth in Annex E hereto (subject to customary limitations and qualifications), which opinion may be relied upon by the Merger Lenders providing debt financing to consummate the transactions contemplated hereby.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) 4.6 shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which that are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)4.6) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which that are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; provided, that for purposes of this Section 9.2(b), a covenant of the Company shall only be deemed to have not been performed if the Company has materially breached such material covenant and failed to cure within twenty (20) days after notice (or if earlier, the Agreement End Date); and
(c) There has shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect after the date of this Agreement that is continuing.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, consummate the Merger transactions contemplated by this Agreement (including the Closing and the Merger) are subject to the satisfaction at the Closing of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger SubAcquiror:
(a) (i) The representations and warranties Each of the Company contained in the first sentence of Section 4.6(a) Fundamental Representations shall be true and correct in all but de minimis respects at and as of the Closing DateDate as though then made other than, except solely with respect to such the representations and warranties which speak set forth in Section 3.6, de minimis inaccuracies with respect to the capitalization of the Company that do not increase the Merger Consideration payable by Acquiror pursuant to this Agreement (provided that, in each case, any such representation and warranty that addresses matters only as to an earlier of a certain date specified herein shall be so true and correct in all respects only as of that certain date, which ) and (ii) each of the other representations and warranties of the Company set forth in Article III shall be true and correct in all but de minimis respects at and as of the Closing Date as though then made (provided that any such date, except for changes after the representation and warranty that addresses matters only as of a certain date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) specified herein shall be so true and correct in all material respectsrespects only as of that certain date), in each case in this clause (ii) determined without regard to qualifications as of the Closing Dateto materiality or Material Adverse Effect, except with respect to the extent the failure of any such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct has not resulted in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;.
(b) Each of the The covenants and agreements of the Company required by this Agreement to be performed as of or prior to the Closing shall have been performed in all material respects; and.
(c) There The Company shall have delivered to Acquiror a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that the conditions specified in Section 8.1(a) and Section 8.1(b) have been fulfilled.
(d) The Holder Representative shall have executed and delivered to Acquiror and Merger Sub the Escrow Agreement.
(e) The Company shall have delivered Voting and Support Agreements duly executed by holders of Units representing at least 90% of the outstanding Units, and each such Voting and Support Agreement shall be effective and shall not have been revoked, rescinded or amended without the written consent of Acquiror.
(f) The Company shall have delivered Option Cancellation Agreements duly executed by each Key Option Holder, and each such Option Cancellation Agreement shall be effective and shall not have been revoked, rescinded or amended without the written consent of Acquiror.
(g) On the Closing Date, the Company shall cause to be delivered to Acquiror duly signed resignations, effective immediately upon the Closing, of all officers, managers or directors (as applicable) of their position as an officer, manager or director of the Company and each Subsidiary of the Company; provided that, no such resignation by any individual of their position as a manager, director or officer shall be a resignation from employment with the Company or such Subsidiary if such individual is so employed.
(h) The Company shall have delivered to Acquiror the approvals, consents or waivers of the Persons identified on Schedule 8.1(h), in form and substance reasonably satisfactory to Acquiror.
(i) All Liens on the Company’s or any of its Subsidiaries’ assets or properties (other than Permitted Liens and except as set forth on Schedule 8.1(i)) shall have been released in form and substance reasonably satisfactory to Acquiror.
(j) All amounts due and payable or that may become due and payable (including notice periods, repatriation commitments, severance, bonuses and sales commissions) with respect to any employee or other person whose relationship with the Company and its Subsidiaries has terminated or expired on or prior to the Closing shall have been paid in full by the Company such that neither the Company nor any of its Subsidiaries have any obligation to any such Person as of or after the Closing.
(k) Prior to the Closing Date, there shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse Effect.
(l) At least three (3) Business Days prior to the Closing Date, the Company shall have provided Acquiror with payoff letters, acceptable to Acquiror (the “Payoff Letters”).
(m) Deliver to Acquiror, to the extent not addressed in payoff letters, releases and termination statements (in proper form for filing immediately after the Closing) for all Liens on the assets of the Company (other than Permitted Liens), including the agreement of the holders of such Liens to terminate all UCC financing statements filed in connection therewith.
(n) The Company shall have delivered to Acquiror an amendment to the Karmadata Agreement, duly executed by the Company and karmadata, Inc.
(o) Acquiror shall have received, in form and substance reasonably satisfactory to Acquiror: (i) a certificate issued by the Company and signed by its “Tax Matters Member” under penalties of perjury, stating (A) that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or (B) that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of United States real property interests plus cash or cash equivalents, in each case within the meaning of Treasury Regulation Section 1.1445-11T(d)(1).
(p) For each holder of Units, Acquiror shall have received an executed IRS Form W-9 that meets the requirements of Section 6.01 of IRS Notice 2018-29.
Appears in 1 contract
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a4.5(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a4.5(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would notnot reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, that, for purposes of this Section 9.2(a) only, the representations and warranties set forth in Section 4.6(c) and Section 4.7 shall be true and correct solely as of the date of this Agreement, except for, in each case, inaccuracies or omissions that would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and
(c) There has shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect after the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Growth for Good Acquisition Corp)
Conditions to Obligations of Acquiror and Merger Sub. The obligations of Acquiror and Merger Sub to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by Acquiror and Merger Sub:
(a) (i) The representations and warranties of the Company contained in the first sentence of Section 4.6(a) shall be true and correct in all but de minimis respects as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all but de minimis respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements, (ii) the Company Fundamental Representations (other than the first sentence of Section 4.6(a)) shall be true and correct in all material respects, in each case as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, except for changes after the date of this Agreement which are contemplated or expressly permitted by this Agreement or the Ancillary Agreements Agreements, and (iii) each of the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Company Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the Closing Date, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Each of the covenants of the Company to be performed as of or prior to the Closing shall have been performed in all material respects; and
(c) There has shall not been any Event that has had, or would reasonably be expected to have, individually or in the aggregate, have occurred a Company Material Adverse EffectEffect after the date of this Agreement.
Appears in 1 contract
