Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing of each of the following conditions: (a) The representations and warranties of the Company set forth in Article IV (other than the Fundamental Representations) will be true and correct in all respects (without giving effect to any materiality or material adverse effect qualifications contained therein) as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case, as of such date), except, in each case, where the failure of such representations and warranties to be so true and correct would not have a Material Adverse Effect on the Company. The Fundamental Representations will be true and correct in all respects (other than de minimis exceptions) as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case, as of such date). (b) The Company must have performed and complied with in all material respects all agreements, covenants and obligations required to be performed or complied with by the Company under this Agreement at or prior to the Closing. (c) There shall not have occurred any Material Adverse Effect since the Effective Date. (d) The Company must have delivered or caused to be delivered to Buyer the items required by Sections 3.2. (e) All Affiliate Agreements set forth on Schedule 7.2(e) shall have been terminated, in each case, in all respects and without any further liability or obligation (including obligations that expressly survive the termination thereof) of the Company or any of the Subsidiaries. (f) The waiting period (including any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act will have expired or been terminated, and all required filings will have been completed under the EUMR and the necessary approvals, clearances or consents under the EUMR will have been procured. (g) None of the parties hereto will be subject to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement. (h) No Governmental Authority shall have enacted, issued or promulgated any Law that is in effect which prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement. (i) The Company will have delivered to Buyer written consents or waivers of appraisal rights by Stockholders that hold in the aggregate such number of Shares equal to 95% or more of the Shares. (j) The Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the Lease, dated as of May 24, 2013, as amended, for the leased real property located at 000 Xxx-Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000.
Appears in 1 contract
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement Merger are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing of each of the following additional conditions, any one or more of which may be waived in writing by Buyer and Merger Sub:
(a) (i) The representations and warranties of the Company set forth contained in Article IV this Agreement (other than the Company Fundamental RepresentationsRepresentations and the representations set forth in Section 4.7) will shall be true and correct on and as of the Closing Date as if made on the Closing Date (other than representations and warranties that are made as of a specific date, which representations and warranties shall have been so true and correct on and as of such date), except for breaches or inaccuracies that would not reasonably be expected to have a Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, all materiality, Material Adverse Effect and similar qualifiers set forth in such representations and warranties shall be disregarded), (ii) the representations and warranties contained in Section 4.6 shall be true and correct in all respects (without giving effect to any materiality or material adverse effect qualifications contained therein) as of the Closing Date as though made on and as of the Closing Date as if made on the Closing Date (except to the extent such other than representations and warranties speak that are made as of an earlier a specific date, in which case, representations and warranties shall have been so true and correct on and as of such date), exceptexcept for de minimis changes or changes arising as a result of actions permitted to be taken in accordance with Section 6.1, in each case, where (iii) the failure of such representations and warranties to contained in Section 4.7 shall be so true and correct would not have a Material Adverse Effect in all material respects on and as of the Closing Date as if made on the Company. The Closing Date (other than representations and warranties that are made as of a specific date, which representations and warranties shall have been true and correct in all material respects on and as of such date), and (iv) the Company Fundamental Representations will (other than the representations in Section 4.6 (which are addressed in clause (ii) hereof)) shall be true and correct in all respects (other than de minimis exceptions) as of the Closing Date as though made on and as of the Closing Date as if made on the Closing Date (except to the extent such other than representations and warranties speak that are made as of an earlier a specific date, in which case, representations and warranties shall have been so true and correct on and as of such date).
(b) The Each of the covenants of the Company must have performed and complied with in all material respects all agreements, covenants and obligations required to be performed or complied with by the Company under this Agreement at or prior to the ClosingClosing shall have been performed in all material respects.
(c) There The Company shall not have occurred any Material Adverse Effect since delivered to Buyer a certificate signed by an officer of the Effective 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 Company must Since the date of this Agreement, no change, event or circumstance shall have delivered occurred, and is continuing, that has had, or caused would reasonably be expected to be delivered to Buyer have, individually or in the items required by Sections 3.2aggregate, a Material Adverse Effect.
(e) All Affiliate Agreements set forth on Schedule 7.2(e) shall have been terminated, in each case, in all respects and without any further liability or obligation (including obligations that expressly survive the termination thereof) of the Company or any of the Subsidiaries.
(f) The waiting period (including any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act will have expired or been terminated, and all required filings will have been completed under the EUMR and the necessary approvals, clearances or consents under the EUMR will have been procured.
(g) None of the parties hereto will be subject to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement.
(h) No Governmental Authority shall have enacted, issued or promulgated any Law that is in effect which prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement.
(i) The Company will shall have delivered to Buyer written consents or waivers of appraisal rights by Stockholders that hold the deliveries contemplated in the aggregate such number of Shares equal to 95% or more of the SharesSection 2.6(a).
(j) The Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the Lease, dated as of May 24, 2013, as amended, for the leased real property located at 000 Xxx-Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000.
Appears in 1 contract
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing of each of the following conditions:
(a) The representations and warranties of the Company set forth in Article IV (other than the Fundamental Representations) will this Agreement shall be true and correct in all material respects (without giving effect to any materiality or material adverse effect qualifications contained therein) as of the Closing Date as though made on and as of the Closing Date (except to the extent for such representations and warranties speak as of an earlier datethat are qualified by their terms by a reference to materiality or “Material Adverse Effect”, in which case, as of such date), except, in each case, where the failure of such representations and warranties to be as so true and correct would not have a Material Adverse Effect on the Company. The Fundamental Representations will qualified shall be true and correct in all respects (other than de minimis exceptionsrespects) on and as of the Closing Date date hereof and on and as of the Effective Time as though such representations and warranties were made on and as of the Closing Date such time (except to the extent such for representations and warranties speak which address matters only as of an earlier to a specified date, in which case, as of representations and warranties shall be so true and correct with respect to such specified date).
(b) The Company must have performed and complied with in all material respects all agreements, covenants and obligations required to be performed or complied with by the Company it under this Agreement at or prior to the ClosingClosing Date.
(c) There Since the date of this Agreement, there shall not have occurred any events that, individually or in the aggregate, have had or would be reasonably likely to have a Material Adverse Effect since the Effective DateEffect.
(d) The Company must have delivered or caused to be delivered to Buyer and Merger Sub the items required by Sections Section 3.2.
(e) All Affiliate Agreements set forth on Schedule 7.2(e) shall have been terminated, in each case, in all respects and without any further liability or obligation (including obligations that expressly survive the termination thereof) of the Company or any of the Subsidiaries.
(f) The waiting period (including any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act will have expired or been terminated, and all required filings will have been completed under the EUMR and the necessary approvals, clearances or consents under the EUMR will have been procured.
(g) None of the parties hereto will Parties to this Agreement shall be subject to any Order of a court or other tribunal of competent jurisdiction that preventsprohibits, makes illegal limits, delays, or prohibits otherwise restrains the consummation of the transactions contemplated by this Agreement.
(hf) No lawsuit, claim, action, investigation, or other legal proceeding, in each case having been commenced by a Governmental Authority Authority, shall have enactedbe pending that seeks to prohibit, issued limit, delay, or promulgated any Law that is in effect which prevents, makes illegal or prohibits otherwise restrain the consummation of the transactions contemplated by this Agreement.
(g) The Escrow Agent must have duly executed and delivered a counterpart to the Escrow Agreement.
(h) The Required Vote shall have been obtained such that this Agreement and the Merger shall have been duly and validly adopted and approved, as required by the DGCL, the Company’s certificate of incorporation and the Company’s bylaws, each as in effect on the date of the Closing, pursuant to the Stockholders’ Written Consent executed and delivered to Buyer, by holders of at least 99.5% of the outstanding shares of Common Stock and Preferred Stock.
(i) The Company will Twenty Day Period shall have delivered to Buyer written consents or waivers expired and there shall be no Dissenting Shares in excess of appraisal rights by Stockholders that hold in the aggregate such number of Shares equal to 950.5% or more of the Sharesoutstanding shares of Company Capital Stock.
(j) Each of the Consents set forth on Schedule 7.2(j) shall have been obtained in form and substance satisfactory to Buyer.
(k) The Key Employee Agreements shall not have been rescinded and the Key Employee Agreements shall remain in full force and effect.
(l) Each of the Contracts set forth on Schedule 7.2(l) shall have been terminated in form and substance satisfactory to Buyer.
(m) The Company will shall have delivered to Buyer written consent by 705 Tri-State Ventureevidence, LLC with respect in form and substance reasonably satisfactory to Buyer, of (i) the Lease, dated taking of all necessary action to provide that all unvested participation rights under the MIP shall have become fully vested and (ii) the termination of the MIP as immediately following the Effective Time.
(n) The Company shall have delivered to Buyer evidence in form and substance reasonably satisfactory to Buyer of May 24, 2013, as amended, for the leased real property located at 000 Xxx-Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000payment in full of all of the 2015 Annual Bonuses.
Appears in 1 contract
Samples: Merger Agreement (Dts, Inc.)
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement Transactions are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing of each of the following additional conditions:, any one or more of which may be waived in writing by Buyer (without joinder by Merger Sub):
(a) The the representations and warranties of the Company set forth contained in Article IV (other than the Fundamental Representations) will this Agreement which are qualified as to materiality or Material Adverse Effect shall be true and correct and which are not qualified as to materiality or Material Adverse Effect shall be true and correct in all respects (without giving effect to any materiality or material adverse effect qualifications contained therein) respects, in each case as of the Closing Date as though made on date of this Agreement and as of the Closing Date (Date, as if made anew at and as of that time, except with respect to the extent such representations and warranties which speak as of an earlier to another date, in which case, as of such date), except, in each case, where the failure of such representations and warranties to shall be so true and correct at and as of such date; provided, however, that (i) the preamble to the specific numbered representations and warranties in Article III will be disregarded for purpose of determining the time at which representations and warranties speak and (ii) in the event of a breach of a representation or warranty the condition set forth in this Section 7.2(a) shall be deemed satisfied unless the effect of all such breaches taken together would not have reasonably be expected to result in a Material Adverse Effect on the Company. The Fundamental Representations will be true and correct in all respects (other than de minimis exceptions) as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case, as of such date).;
(b) The Company must have performed and complied with in all material respects all agreements, the covenants and obligations required herein to be performed or complied with by the Company under this Agreement at as of or prior to the Closing.Closing shall have been performed in all material respects;
(c) There the Company shall have delivered to Buyer a certificate signed by an officer of the Company (and not in such officer's personal capacity), dated the Closing Date, certifying that the conditions specified in Sections 7.2(a) and 7.2(b) have occurred any Material Adverse Effect since the Effective Date.been fulfilled;
(d) The the Company must shall have delivered to Buyer certificates of good standing of the Company and its U.S. Subsidiaries in their respective jurisdictions of incorporation or caused to be organization;
(e) the Company shall have delivered to Buyer the items Certificate of Merger together with evidence of the filing thereof with the Secretary of State of Delaware; provided, however, that the Representative will have the right to rescind such filing if the payments required by Sections 3.2.
(e) All Affiliate Agreements set forth Section 2.2 have not been made on Schedule 7.2(e) shall the Closing Date or the share certificates required by Section 2.3 have not been terminateddelivered on the Closing Date, in each case, in all respects which case this condition will no longer be satisfied and without any further liability or obligation (including obligations that expressly survive the termination thereof) of the Company or any of the SubsidiariesClosing shall not have occurred.
(f) The waiting period (including any extension thereof) applicable to a written consent action in the consummation form attached as Exhibit B containing the Company Stockholders Approval and signed by a majority of the transactions contemplated hereby under holders of Company Common Stock and a majority of the HSR Act will have expired or been terminated, and all required filings will outstanding Company Series A Preferred Shares shall have been completed under the EUMR and the necessary approvals, clearances or consents under the EUMR will have been procured.obtained;
(g) None of the parties hereto will be subject Company shall have delivered to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits Buyer the consummation of the transactions contemplated by this Agreement.WLR Acknowledgement Letters;
(h) No Governmental Authority Representative shall have enacted, issued or promulgated any Law that is in effect which prevents, makes illegal or prohibits delivered to Buyer a duly executed counterpart to the consummation of the transactions contemplated by this Escrow Agreement.; and
(i) The a Material Adverse Effect on the Company will shall not have delivered to Buyer written consents or waivers of appraisal rights by Stockholders occurred that hold in the aggregate such number of Shares equal to 95% or more is continuing as of the SharesClosing Date.
(j) The Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the Lease, dated as of May 24, 2013, as amended, for the leased real property located at 000 Xxx-Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000.
Appears in 1 contract
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to effect the Merger and to consummate the other transactions contemplated by this Agreement are to occur at the Effective Time shall be subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing Effective Time of each of the following further conditions:
(a) The Each of the representations and warranties of the Company Partnership and the General Partner set forth in Article IV (other than the Fundamental Representations) will this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or a Partnership Material Adverse Effect, shall be true and correct in all respects (without giving effect to any materiality or material adverse effect qualifications contained therein) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent that such representations and warranties speak as of an earlier are expressly limited by their terms to another date, in which case, case such representations and warranties shall be true and correct as of such other date), except, in each case, except where the failure of such representations and warranties to be so true and correct would not not, individually or in the aggregate, reasonably be expected to have a Partnership Material Adverse Effect on the Company. The Fundamental Representations will Effect, and Buyer and Merger Sub shall have received a certificate (which certificate may be true and correct in all respects (other than de minimis exceptions) as of the Closing Date as though made on and as of the Closing Date (except qualified by Knowledge to the same extent as such representations and warranties speak as of an earlier datethe Partnership or the General Partner contained herein are so qualified) signed on behalf of the Partnership by the General Partner, in which casesuch capacity, as of to such date)effect.
(b) The Company must Partnership and General Partner shall have performed and complied with in all material respects all agreements, covenants and obligations required to be performed or complied with by the Company them under this Agreement at or prior to the ClosingEffective Time.
(c) There Since the date of this Agreement, there shall not have occurred any been no Partnership Material Adverse Effect since the Effective DateChange.
(d) The Company must Buyer shall have received a certificate signed by the General Partner on behalf of the Partnership stating that, as of the Closing Date, the aggregate amount of Partnership Cash remaining in the Partnership is not less than the sum of (i) $5,000,000 and (ii) any amount delivered or caused paid by the Manager to be delivered the Partnership prior to Buyer the items required by Sections 3.2Closing with respect to the Final Net Profit Payment.
(e) All Affiliate Agreements set forth on Schedule 7.2(e) Hospitality Properties Trust shall have been terminated, waived in each case, in all respects and without writing any further liability or obligation (including obligations that expressly survive the termination thereof) rights of the Company or any of the Subsidiaries.
(f) The waiting period (including any extension thereof) applicable to the consummation of the transactions contemplated hereby first offer it may have under the HSR Act will have expired or been terminatedPurchase-Sale and Option Agreement, dated February 3, 1995, by and all required filings will have been completed under among HMH Courtyard Properties, Inc., HMH Properties, Inc. and Hospitality Properties, Inc., as amended through the EUMR and the necessary approvalsdate hereof, clearances or consents under the EUMR will have been procured.
(g) None of the parties hereto will be subject with respect to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement.
(hf) No Governmental Authority Buyer shall have enactedreceived, issued or promulgated any Law to its reasonable satisfaction, evidence that is in effect which prevents, makes illegal or prohibits the consummation of the transactions actions contemplated by this Agreement.
(iSection 6.15(b) The Company will have delivered to Buyer written consents or waivers of appraisal rights by Stockholders that hold in the aggregate such number of Shares equal to 95% or more of the Shares.
(j) The Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the LeaseNew Entity shall have occurred.
(g) The Partnership shall have, dated as to the reasonable satisfaction of May 24Buyer, 2013corrected, settled, discharged, satisfied or provided a bond with respect to, as amendedthe case may be, for all material title deficiencies (including those title deficiencies set forth on Schedule 7.3(g)(i)) and all tax and judgment liens ------------------- affecting the leased real property located at 000 Xxx-Xxxxx XxxxxxxPartnership or its properties, Xxxxxxexcept, Xxxxxxxx 00000in the case of title deficiencies other than the title deficiencies set forth on Schedule 7.3(g)(i), ------------------ where the failure to so correct such deficiencies would not reasonably be expected to have a Partnership Material Adverse Effect. For the purposes of this Section 7.3(g), the failure to correct, settle, discharge, satisfy or provide a bond with respect to the title deficiencies set forth on Schedule 7.3(g)(ii) ------------------- shall not constitute a Partnership Material Adverse Effect.
Appears in 1 contract
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are further subject to the satisfaction fulfillment (or waiver (by Buyer and Merger Sub, in their sole discretion and if permitted by under applicable Law) ), at or prior to before the Closing Closing, of each of the following conditions:
(a) The Other than the representations and warranties of the Company set forth contained in Article IV Section 3.1 (Organization and Power), Section 3.3 (Capitalization; Subsidiaries; Indebtedness), Section 3.5 (Financial Statements), and Section 3.12 (Brokerage) (collectively, the “Company Specified Representations and Warranties”), the representations and warranties of the Company contained in this Agreement and any certificate or other than the Fundamental Representations) writing delivered pursuant hereto will be true and correct in all respects (without giving effect to in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material adverse effect qualifications contained thereinrespects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the Closing Date as though made date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except to the extent such those representations and warranties speak that address matters only as of an earlier a specified date, in the accuracy of which case, will be determined as of such datethat specified date in all respects), except, in each case, where the failure of such representations and warranties to be so true and correct would not have a Material Adverse Effect on the Company. The Fundamental Company Specified Representations and Warranties will be true and correct in all respects (other than de minimis exceptions) on and as of the Closing Date as though made date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except to the extent such those representations and warranties speak that address matters only as of an earlier a specified date, in the accuracy of which case, will be determined as of such datethat specified date in all respects).
(b) The Company must will have duly performed and complied with in all material respects with all agreements, covenants covenants, and obligations conditions required by this Agreement to be performed or complied with by it before or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, the Company under this Agreement at or prior to the Closingwill have performed such agreements, covenants and conditions, as so qualified, in all respects.
(c) There shall Buyer will have received evidence from the Company of actions by Company Stockholders sufficient to ensure that no more than ten percent (10%) of the shares of Company Stock outstanding as of the Effective Time are then or can thereafter become Dissenting Shares.
(d) Buyer will have received a copy of the completed 2011 Audited Financial Statements.
(e) The Company will have entered into a long term supply agreement with New Cast Industries Co. Ltd., a Korean company (“New Cast”), and its affiliates, in form and substance satisfactory to Buyer (it being specifically acknowledged by Buyer that an agreement term of a five year initial term, with a five year option to renew by Company or its successors, provided Company’s or its successors’ purchases of Product units from such supplier average not less than 5000 Product units per calendar month in 2016 and 5500 Product units per calendar month during the applicable portion of 2017), and the Company will have delivered to Buyer a fully executed original of that agreement.
(f) By not later than April 20, 2012, New Cast will have permitted Buyer to make a site visit to the Korean facilities of New Cast, the owner of New Cast will have given the representatives of Buyer a tour of the New Cast facilities, and the results of that site visit will have confirmed that: (i) New Cast has an operating facility; (ii) New Cast is currently manufacturing Product units at that facility and shipping them to the Company; and (iii) New Cast has the capability (or is capable of increasing capacity) to manufacture Product units at levels consistent with the projections for 2012, 2013, and 2014 set forth on Schedule 6.2(f).
(g) From the date of this Agreement, there will not have occurred any Material Adverse Effect since Effect, nor will any event or events have occurred that, individually or in the Effective Dateaggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(dh) The Company must Buyer will have delivered or caused to be delivered to Buyer received each of the items required by Sections 3.2.
(e) All Affiliate Agreements set forth on Schedule 7.2(e) shall have been terminatedfollowing documents, in each casecase duly executed (if applicable) by each party thereto other than Buyer and in form and substance reasonably acceptable to Buyer:
(i) an escrow agreement, in all respects the form attached hereto as Exhibit A, among the Company, the Stockholder Representative, Buyer, and without any further liability or obligation the Escrow Agent (including obligations that expressly survive the “Escrow Agreement”);
(ii) employment agreements with each of Jxxxx Xxxxxx, CEO; Nxxxx Xxxxxx, Senior Vice President of Sales & Marketing, each of which provides for compensation at the levels in effect before the execution of this Agreement, an agreement not to compete with the Business (as defined in this Agreement) for one year following termination thereofof employment, and such other provisions as may be mutually agreed upon by Buyer and the respective officer;
(iii) a consulting agreement with Jxxxxxx X. Xxxxxx, DPM, FACFAS, Medical Director, which provides for compensation at the levels in effect under his current consulting arrangement before the execution of this Agreement, an agreement not to compete with the Business (as defined in this Agreement) for one year following termination of the Company or any of the Subsidiaries.consulting arrangement, and such other provisions as may be mutually agreed upon by Buyer and Dx. Xxxxxx;
(fiv) The waiting period (including any extension thereof) applicable copies of all consents to the consummation of the transactions contemplated hereby under the HSR Act will have expired or been terminated, and all required filings will have been completed under the EUMR and the necessary approvals, clearances or consents under the EUMR will have been procured.
(g) None of the parties hereto will be subject obtained in order to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits the consummation of consummate the transactions contemplated by this Agreement.Agreement as required to be set forth on Schedule 3.4;
(hv) No Governmental Authority shall have enactedinvoices reflecting the Company Transaction Expenses;
(vi) written resignations of such officers, issued or promulgated any Law that is in effect which preventsif any, makes illegal or prohibits the consummation of the transactions contemplated Company as may be requested by this AgreementBuyer;
(vii) a “FIRPTA” certificate duly executed by an officer of the Company, prepared in accordance with Treasury Regulation § 1.1445-2(c)(3), and otherwise in form and substance satisfactory to Buyer, certifying that an interest in the Company is not a United States real property interest because the Company is not and has not been a United States real property holding corporation (as defined in Code Section 897(c)(2)) at any time during the five year period before the Closing Date, and evidence of the filing of a notice and such certificate by the Company with the IRS, as required by Treasury Regulation § 1.897-2(h)(2).
(i) The Company Buyer will have delivered to Buyer written consents or waivers received a certificate of appraisal rights by Stockholders that hold in the aggregate such number of Shares equal to 95% or more a duly authorized officer of the Shares.Company, current as of the Closing Date, certifying:
(ji) The that the Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the Lease, dated has at least $600,000 of Closing Net Assets (of which at least $100,000 is cash on hand) as of May 24, 2013, the Closing Date;
(ii) that the amounts set forth on the Closing Payment Spreadsheet as amended, for Company Transaction Expenses are accurate and complete; and
(iii) that the leased real property located at 000 Xxx-Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000information set forth on the updated CSE Table that is part of the Closing Payment Spreadsheet is accurate and complete.
Appears in 1 contract
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement Merger are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing of each of the following additional conditions, any one or more of which may be waived in writing by Buyer and Merger Sub:
(a) The (i) Each of the representations and warranties of the Company set forth contained in Article IV this Agreement (other than Section 4.1 (Corporate Organization), Section 4.3 (Due Authorization), Section 4.6 (Capitalization of the Company) and Section 4.16 (Brokers’ Fees) hereof (which are referred to as the “Fundamental Representations”)) will be true and correct in all respects (without giving effect to any materiality limitations as to “materiality” or material adverse effect qualifications contained “Material Adverse Effect” set forth therein) shall be true and correct as of the Closing Date Date, as though if made on anew at and as of the Closing Date (that time, except with respect to the extent such representations and warranties which speak as of to an earlier date, in which case, representations and warranties shall be true and correct at and as of such date), except, in each case, where the failure of such representations and warranties to be so true and correct except for any inaccuracy or omission that would not have a Material Adverse Effect on the Company. The , (ii) the Fundamental Representations will (other than Section 4.6 (Capitalization of the Company)) shall be true and correct in all respects (other than de minimis exceptions) as of the Closing Date Date, as though if made on anew at and as of that time, except with respect to 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 and (iii) the representations and warranties contained in Section 4.6 (Capitalization of the Company) shall be true and correct as of the Closing Date (Date, as if made anew at and as of that time, except with respect to the extent such representations and warranties which speak as of to an earlier date, in which case, representations and warranties shall be true and correct at and as of such date), except for de minimis exceptions.
(b) The Each of the covenants of the Company must have performed and complied with in all material respects all agreements, covenants and obligations required to be performed or complied with by the Company under this Agreement at or prior to the ClosingClosing shall have been performed in all material respects.
(c) There The Company shall not have occurred any Material Adverse Effect since delivered to Buyer a certificate, in the Effective form attached hereto as Annex E, 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 No Material Adverse Effect on the Company must shall have delivered or caused occurred since the date of this Agreement (other than any Material Adverse Effect under clause (i)(B) of the definition of “Material Adverse Effect” that has been cured prior to be delivered to Buyer the items required by Sections 3.2Closing Date).
(e) All Affiliate Agreements set forth Holders of no more than 5% of the outstanding Common Shares (calculated on Schedule 7.2(ean Aggregate Fully-Diluted Common Shares basis) shall have been terminated, in each case, in all respects exercised (and without any further liability not withdrawn or obligation (including obligations that expressly survive the termination thereofotherwise properly failed to perfect) of the Company appraisal or any of the Subsidiaries.
(f) The waiting period (including any extension thereof) applicable to the consummation of the transactions contemplated hereby dissenters’ rights under the HSR Act will have expired or been terminated, and all required filings will have been completed under the EUMR and the necessary approvals, clearances or consents under the EUMR will have been procuredDGCL.
(g) None of the parties hereto will be subject to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement.
(h) No Governmental Authority shall have enacted, issued or promulgated any Law that is in effect which prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement.
(i) The Company will have delivered to Buyer written consents or waivers of appraisal rights by Stockholders that hold in the aggregate such number of Shares equal to 95% or more of the Shares.
(j) The Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the Lease, dated as of May 24, 2013, as amended, for the leased real property located at 000 Xxx-Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000.
Appears in 1 contract
Samples: Merger Agreement (Envision Healthcare Holdings, Inc.)
Conditions to Obligations of Buyer and Merger Sub. The obligations obligation of each of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are Merger is subject to the satisfaction (or waiver (if permitted by applicable LawBuyer) at or prior to the Closing of each of the following additional conditions:
(a) The the number of Dissenting Shares shall not exceed four percent (4%) of the number of outstanding Common Shares as of the Effective Time (calculated after giving effect to the Preferred Share Conversion of all the issued and outstanding Preferred Shares into Common Shares);
(b) the Company and its Subsidiaries shall have obtained at their own expense (and shall have provided copies thereof to Buyer) all of the waivers, releases, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Schedule 5.2(b), all of which shall be in full force and effect;
(c) the representations and warranties of the Company set forth in Article IV (other than the Fundamental Representations) will this Agreement shall be true and correct in all respects (without giving effect to any materiality or material adverse effect qualifications contained therein) as of the date of this Agreement and shall be true and correct as of the Closing Date as though made on and as of the Closing Date (other than representations and warranties expressly made as of another date, which shall be true and correct as of such other date), except to the extent that any such inaccuracies, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect or a material adverse effect on the ability of the Company to consummate the transactions contemplated by this Agreement (it being agreed that any materiality limitations in particular representations and warranties speak as of an earlier date, shall be disregarded in which case, as of determining whether any such date), except, in each case, where the failure of such representations and warranties to be so true and correct inaccuracies would not have a Company Material Adverse Effect on the Company. The Fundamental Representations will be true and correct in all respects (other than de minimis exceptions) as for purposes of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case, as of such datethis Section 5.2(c).);
(bd) The the Company must shall have performed and or complied with in all material respects all agreements, its agreements and covenants and obligations required to be performed or complied with by the Company under this Agreement at as of or prior to the Closing.
(c) There shall not have occurred any Material Adverse Effect since the Effective Date.
(d) The Company must have delivered or caused to be delivered to Buyer the items required by Sections 3.2.;
(e) All Affiliate Agreements set forth [intentionally omitted];
(f) no material Legal Proceeding shall be pending and no material Legal Proceeding that was not filed, instituted or otherwise in effect on Schedule 7.2(e) the date hereof shall have been terminatedfiled or otherwise instituted, or threatened in each casewriting, in all respects and without any further liability or obligation (including obligations that expressly survive the termination thereof) of against the Company or any of the its Subsidiaries.;
(fg) The waiting period the Company shall have delivered to Buyer and Merger Sub the Company Compliance Certificate;
(including h) Buyer shall have received copies of the resignations, effective as of the Closing, of each director and officer of the Company and its Subsidiaries (other than any extension thereof) applicable such resignations which Buyer designates, by written notice to the consummation Company, as unnecessary);
(i) Buyer shall have received from counsel to the Company an opinion in substantially the form attached hereto as Exhibit D, addressed to Buyer and dated as of the Closing Date;
(j) each of the Persons listed on Schedule 5.2(j) shall have executed and delivered to Buyer a Non-Competition Agreement, and each such Non-Competition Agreement shall be in full force and effect;
(k) each of the Persons listed on Schedule 5.2(k) shall have executed and delivered to Buyer a Retention Agreement, and each such Retention Agreement shall be in full force and effect;
(l) (i) all of the employees of the Company set forth on Schedule 5.2(l)(i) shall have accepted employment with Buyer and shall have executed and delivered Buyer’s standard forms of offer letter, Code of Business Conduct and Ethics, Xxxxxxx Xxxxxxx Policy and Confidentiality and Invention Assignment Agreement, (ii) eighty percent (80%) of the employees of the Company set forth on Schedule 5.2(l)(ii) shall have accepted employment with Buyer and shall have executed and delivered Buyer’s standard forms of offer letter, Code of Business Conduct and Ethics, Xxxxxxx Xxxxxxx Policy and Confidentiality and Invention Assignment Agreement, (iii) eighty percent (80%) of the employees of the Company set forth on Schedule 5.2(l)(iii) shall continue to be employed by the Company or its Subsidiaries (as applicable) at the Closing and shall not have given any notice or other indication that they are not willing or do not intend to be employed by Buyer, the Surviving Corporation or a Subsidiary of Buyer or the Surviving Corporation (as Buyer shall designate), following the Effective Time or that they are not willing or do not intend to execute and deliver to Buyer and be bound by Buyer’s Code of Business Conduct and Xxxxxxx Xxxxxxx Policy and (iv) all of the employees of the Company set forth on Schedule 5.2(l)(iv) shall have executed and delivered a waiver of the right to the receive Options as set forth in the respective employee’s offer letter or similar document;
(m) the agreements set forth on Schedule 5.2(m) shall have been terminated and shall be of no further force or effect;
(n) the 280G Vote shall have occurred;
(o) Index Ventures, Nexus India Capital, L.P., and each of their respective Affiliates shall have executed and delivered the Indemnity Letter Agreement;
(p) the Agreement shall have been adopted, and the Merger shall have been approved, by (i) each of the individuals set forth on Schedule 5.2(p) (the “Specified Stockholders”) and (ii) a majority of the votes represented by the outstanding Company Shares and Preferred Shares entitled to vote on this Agreement and the Merger, voting together as a single class, held by Company stockholders other than the Specified Stockholders;
(q) evidence that the Company has terminated the Company’s sponsorship of and/or participation in, if and to the extent requested by Buyer, by notice delivered by the Company within three (3) business days prior to the Closing, any 401(k) plan, effective on the Closing Date on terms reasonably satisfactory to Buyer, shall have been delivered to Buyer;
(r) the Company shall have taken all actions required in order to accelerate the vesting of all Unvested Options held by the individuals set forth on Schedule 5.2(r);
(s) the matters set forth on Schedule 5.2(s) shall have been completed to the reasonable satisfaction of Buyer at least three (3) days prior to the Closing Date;
(t) each issued and outstanding Preferred Share shall have been converted into one (1) Common Share in accordance with the Company’s Amended and Restated Certificate of Incorporation and the Delaware General Corporation Law; and
(u) Buyer shall have received (i) a certificate executed by the Secretary of the Company certifying (x) attached copies of the Certificate of Incorporation and Bylaws of the Company and all amendments thereto in effect as of immediately prior to the Closing, and (y) attached copies of all resolutions or actions by written consent of the Board of Directors of the Company, any committee of the Board of Directors of the Company or the stockholders of the Company authorizing and approving this Agreement, the Merger and the transactions contemplated hereby under and (ii) certificates of good standing of the HSR Act will have expired or been terminated, Company and all required filings will have been completed under the EUMR its Subsidiaries in their jurisdiction of organization and the necessary approvals, clearances or consents under the EUMR will have been procuredvarious foreign jurisdictions in which they are qualified.
(g) None of the parties hereto will be subject to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement.
(h) No Governmental Authority shall have enacted, issued or promulgated any Law that is in effect which prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement.
(i) The Company will have delivered to Buyer written consents or waivers of appraisal rights by Stockholders that hold in the aggregate such number of Shares equal to 95% or more of the Shares.
(j) The Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the Lease, dated as of May 24, 2013, as amended, for the leased real property located at 000 Xxx-Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000.
Appears in 1 contract
Samples: Merger Agreement (Red Hat Inc)
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to effect the Merger and to consummate the other transactions contemplated by this Agreement are to occur at the Effective Time shall be subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing Effective Time of each of the following further conditions:
(a) The Each of the representations and warranties of the Company Partnership and the General Partner set forth in Article IV (other than the Fundamental Representations) will this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or a Partnership Material Adverse Effect, shall be true and correct in all respects (without giving effect to any materiality or material adverse effect qualifications contained therein) as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent that such representations and warranties speak as of an earlier are expressly limited by their terms to another date, in which case, case such representations and warranties shall be true and correct as of such other date), except, in each case, except where the failure of such representations and warranties to be so true and correct would not not, individually or in the aggregate, reasonably be expected to have a Partnership Material Adverse Effect on the Company. The Fundamental Representations will Effect, and Buyer and Merger Sub shall have received a certificate (which certificate may be true and correct in all respects (other than de minimis exceptions) as of the Closing Date as though made on and as of the Closing Date (except qualified by Knowledge to the same extent as such representations and warranties speak as of an earlier datethe Partnership or the General Partner contained herein are so qualified) signed on behalf of the Partnership by the General Partner, in which casesuch capacity, as of to such date)effect.
(b) The Company must Partnership and General Partner shall have performed and complied with in all material respects all agreements, covenants and obligations required to be performed or complied with by the Company them under this Agreement at or prior to the ClosingEffective Time.
(c) There Since the date of this Agreement, there shall not have occurred any been no Partnership Material Adverse Effect since the Effective DateChange.
(d) The Company must Buyer shall have delivered or caused received a certificate signed by the General Partner on behalf of the Partnership stating that, as of the Closing Date, the aggregate amount of Partnership Cash remaining in the Partnership is not less than an amount equal to be delivered to Buyer (i) $24,450,000 less (ii) the items sum of (A) any amount spent in accordance with the Capital Expenditure Plan, (B) any capital expenditures required by Sections 3.2reason of any law, ordinance, regulation or order of competent governmental authority or are otherwise required by the Manager for the continued safe or orderly operation of a Hotel and (C) any other owner funded capital expenditures made prior to the Closing Date with the prior approval of Buyer.
(e) All Affiliate Agreements set forth on Schedule 7.2(e) Hospitality Properties Trust shall have been terminated, waived in each case, in all respects and without writing any further liability or obligation (including obligations that expressly survive the termination thereof) rights of the Company or any of the Subsidiaries.
(f) The waiting period (including any extension thereof) applicable to the consummation of the transactions contemplated hereby first offer it may have under the HSR Act will have expired or been terminatedPurchase-Sale and Option Agreement, dated February 3, 1995, by and all required filings will have been completed under among HMH Courtyard Properties, Inc., HMH Properties, Inc. and Hospitality Properties, Inc., as amended through the EUMR and the necessary approvalsdate hereof, clearances or consents under the EUMR will have been procured.
(g) None of the parties hereto will be subject with respect to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement.
(hf) No Governmental Authority Buyer shall have enactedreceived, issued or promulgated any Law to its reasonable satisfaction, evidence that is in effect which prevents, makes illegal or prohibits the consummation of the transactions actions contemplated by this Agreement.
(iSection 6.15(b) The Company will have delivered to Buyer written consents or waivers of appraisal rights by Stockholders that hold in the aggregate such number of Shares equal to 95% or more of the Shares.
(j) The Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the LeaseNew Entity shall have occurred.
(g) The Partnership shall have, dated as to the reasonable satisfaction of May 24Buyer, 2013corrected, settled, discharged, satisfied or provided a bond with respect to, as amendedthe case may be, for all material title deficiencies and all tax and judgment liens affecting the leased real property located at 000 Xxx-Xxxxx XxxxxxxPartnership, XxxxxxBossier RIBM Two LLC, Xxxxxxxx 00000or their respective properties, except where the failure to correct such title deficiencies (other than tax and judgment liens) would not reasonably be expected to have a Partnership Material Adverse Effect.
Appears in 1 contract
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are for the Closing shall be subject to the satisfaction or waiver (if permitted by applicable Law) waiver, at or prior to the Closing Closing, of each of the following conditions:
(a) The All covenants contained in this Agreement to be complied with by any of the Company and Sellers on or before the Closing (considered individually and in the aggregate) shall have been complied with in all material respects, and Buyer shall have received a certificate of the Company's Chief Executive Officer and Chief Financial Officer dated as of the Closing Date to such effect.
(b) Each of the representations and warranties of the Company set forth and Sellers contained in Article IV 2 and in Article 3 hereof, respectively (other than considered individually and in the Fundamental Representations) will aggregate), shall be true and correct in all material respects (without giving effect to any materiality or material adverse effect qualifications contained therein) as of the Closing Date as though made on and as of the Closing Date (except for those representations and warranties that are already qualified as to the extent materiality, or Material Adverse Effect, in which case such representations and warranties speak as of an earlier date, shall be true in which case, as of such dateall respects), except, in each case, where without giving effect to any supplement to the failure of such Schedules permitted by Section 2.30(d); and the Company (with respect to the representations and warranties contained in Article 2) and the Sellers (with respect to be so true the representations and correct would not warranties contained in Article 3) shall have delivered to Buyer a Material Adverse Effect on certificate of the Company. The Fundamental Representations will be true 's Chief Executive Officer and correct in all respects (other than de minimis exceptions) Chief Financial Officer and the Sellers dated as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case, as of such date).
(b) The Company must have performed and complied with in all material respects all agreements, covenants and obligations required to be performed or complied with by the Company under this Agreement at or prior to the Closingeffect.
(c) There Sellers and the Company shall not have occurred any Material Adverse Effect since the Effective Date.
(d) The Company must have delivered or caused to be delivered each item set forth in Sections 1.12 and 1.14(a).
(d) Any waiting period (and any extension thereof) under the HSR Act applicable to Buyer the items required by Sections 3.2transactions to be consummated at the Closing shall have expired or been terminated.
(e) All Affiliate Agreements set forth on Schedule 7.2(e) shall have been terminated, in each case, in all respects and without any further liability No Governmental Authority or obligation (including obligations that expressly survive the termination thereof) of the Company or any of the Subsidiaries.
(f) The waiting period (including any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act will have expired or been terminated, and all required filings will have been completed under the EUMR and the necessary approvals, clearances or consents under the EUMR will have been procured.
(g) None of the parties hereto will be subject to any Order of a court of competent jurisdiction that preventsshall have enacted, makes issued, promulgated, enforced or entered any statute, rule, regulation, injunction or other order (whether temporary, preliminary or permanent) which is in effect and has the effect of making the transactions contemplated by this Agreement for the Closing illegal or prohibits otherwise restraining or prohibiting the consummation of such transactions, and there must not have been commenced or threatened any proceeding that seeks to restrain or prohibit the consummation of the transactions contemplated by this Agreement.
(f) Sellers and the Company, as applicable, shall have received the authorizations, orders, approvals and consents of Governmental Authorities and third parties described on Schedule 7.2(f) in form and substance reasonably satisfactory to Buyer (subject to Section 5.4).
(g) Since the date of this Agreement, there shall not have occurred any event or change which, individually or in the aggregate, has had or would have a Material Adverse Effect.
(h) No Governmental Authority The Company shall have enacted, issued or promulgated any Law that is in effect which prevents, makes illegal or prohibits the consummation delivered to Buyer payoff letters with respect to all Debt of the transactions contemplated by this AgreementGT Companies outstanding at the Closing, and releases of any and all Encumbrances on the GT Companies or any of its assets shall have been obtained.
(i) The Company will shall have delivered to Buyer written consents or waivers of appraisal rights by Stockholders that hold in the aggregate such number of Shares equal to 95% or more (i) certified copies of the Sharescertificate of incorporation and by-laws of the GT Companies, (ii) certified resolutions of the Company's board of directors authorizing the execution, delivery and performance of this Agreement and approving the consummation of the transactions contemplated hereby and (iii) certificates of the secretary of state in which each GT Company is incorporated and each jurisdiction where each GT Company is qualified to do business stating that each such GT Company is in good standing in such jurisdiction.
(j) The Company will shall have delivered to Buyer written consent by 705 Tria statement issued pursuant to Treasury Regulation §1.897-State Venture2(h) certifying that interests in the Company are not U.S. real property interests.
(k) Buyer shall have received the resignations, LLC effective as of the Closing, of each director and officer of the GT Companies.
(l) Each of Xx. Xxxxx X. Gupta, Xxxxxxxx X. Xxxxxxx, Xxxxxx Xxxxx and Xxxxxx X. Xxxxxxxx shall have executed and delivered amended and restated employment agreements with respect the Company in form and substance reasonably acceptable to Buyer.
(m) The Company shall have obtained the waivers set forth in Section 5.14.
(n) Buyer shall have received from Xxxxxxx Procter LLP, counsel to the LeaseCompany, an opinion, addressed to Buyer, dated as of May 24the Closing Date, 2013and from Xxxxxxx Procter LLP, as amendedcounsel to Xx. Xxxxx X. Gupta and Xxxxxxxx X. Xxxxxxx and Xxxxxxxxx, for the leased real property located at 000 Xxx-Xxxxx Xxxxxxxx & Xxxxxxx, Xxxxxxcounsel to MerchantBanc, Xxxxxxxx 00000opinions, addressed to Buyer, dated as of the Closing Date, each in form and substance reasonably acceptable to Buyer. Such opinions will, at the request of Buyer, state that they may be relied upon by any provider of debt financing to Buyer in connection with the transactions contemplated hereby.
Appears in 1 contract
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement Merger are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing of each of the following additional conditions, any one or more of which may be waived in writing by Buyer and Merger Sub:
(a) The Each of the representations and warranties of the Company set forth contained in Article IV (other than the Fundamental Representations) will this Agreement shall be true and correct (it being understood and agreed that all references in such representations and warranties to “material”, “in all respects (without giving effect to material respects”, “ Material Adverse Effect”or any materiality similar standard or material adverse effect qualifications contained thereinqualification shall be disregarded) as of the Closing Date as though if made on anew and as of the Closing Date (that time, except with respect to the extent such representations and warranties which speak as of to an earlier date, in which case, representations and warranties shall be true and correct at and as of such date), except, in each case, where the failure of such representations and warranties to be so true and correct for any inaccuracy or omission that would not have reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The Fundamental Representations will be true and correct in all respects (other than de minimis exceptions) as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case, as of such date).
(b) The Each of the covenants of the Company must have performed and complied with in all material respects all agreements, covenants and obligations required to be performed or complied with by the Company under this Agreement at or prior to the ClosingClosing shall have been performed in all material respects.
(c) There The Company shall not have occurred any Material Adverse Effect since delivered to Buyer a certificate signed by an officer of the Effective 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 Company must shall have delivered or caused to be delivered to Buyer a certificate in accordance with the items required by requirements of Treasury Regulation Sections 3.21.897-2(h) and 1.1445-2(c)(3) certifying that the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(e) All Affiliate Agreements set forth on Schedule 7.2(e) Since the date of this Agreement, there shall not have been terminatedany event, change or effect that has had or would reasonably be expected to have, individually or in each casethe aggregate, in all respects and without any further liability or obligation (including obligations that expressly survive a Material Adverse Effect on the termination thereof) of the Company or any of the SubsidiariesCompany.
(f) The waiting period Company shall have delivered to Buyer duly executed resignations (including any extension thereof) applicable in form and substance reasonably satisfactory to Buyer), effective immediately after the consummation Effective Time, of the transactions contemplated hereby under directors of the HSR Act will have expired Company or been terminated, and all required filings will have been completed under the EUMR and the necessary approvals, clearances or consents under the EUMR will have been procuredits Subsidiaries set forth on Schedule 9.2(f).
(g) None No more than 5% of the parties hereto will be subject to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits the consummation holders of the transactions contemplated by this Agreement.
(h) No Governmental Authority Aggregate Fully-Diluted Common Shares shall have enacted, issued or promulgated any Law that is objected to the Merger and sought appraisal of their Common Shares in effect which prevents, makes illegal or prohibits accordance with the consummation provisions of the transactions contemplated by this AgreementDGCL.
(i) The Company will have delivered to Buyer written consents or waivers of appraisal rights by Stockholders that hold in the aggregate such number of Shares equal to 95% or more of the Shares.
(j) The Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the Lease, dated as of May 24, 2013, as amended, for the leased real property located at 000 Xxx-Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000.
Appears in 1 contract
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate consummate, or cause to be consummated, the transactions contemplated by this Agreement Transactions are subject to the satisfaction or waiver (if permitted by applicable Law) at or prior to the Closing of each of the following additional conditions:, any one or more of which may be waived in writing by Buyer (without joinder by Merger Sub):
(a) The the representations and warranties of the Company set forth contained in Article IV this Agreement (other than the Company Fundamental RepresentationsRepresentations and Warranties) will shall be true and correct (determined without regard to any materiality or Material Adverse Effect qualification contained in any representation or warranty) as of the date of this Agreement and as of the Closing Date, as if made anew at and as of that time, except, in each case, with respect to representations and warranties made as of a specified date, which representations and warranties shall be true and correct in all respects (without giving effect to any materiality or material adverse effect qualifications contained therein) as of the Closing Date as though made on at and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case, as of such date), except, in each case, where the failure of except for such representations and warranties failures to be so true and correct that would not have reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The and (ii) each Company Fundamental Representations will and Warranties shall be true and correct in all respects (other than de minimis exceptions) both when made and at and as of the Closing Date as though if made at and as of such time (other than those made as of a specified date, which shall be true and correct in all respects as of such specified date), except for such failures to be true and correct that are de minimis;
(b) the agreements and covenants to be performed by the Company as of or prior to the Closing shall have been performed in all material respects;
(c) the Company shall have delivered to Buyer each of the Ancillary Agreements executed by the parties thereto;
(d) the Company shall have delivered to Buyer a certificate signed by an executive officer of the Company, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Sections 6.2(a) and 6.2(b) have been fulfilled;
(e) the Company shall have delivered to Buyer the audited consolidated balance sheet of the Company and its Subsidiaries as of June 28, 2014 with the related audited statements of operations, cash flows and stockholders equity, for the period then ended, that in each case are prepared in conformity with GAAP (except as may be indicated in the notes thereto);
(f) since the date of this Agreement, a Material Adverse Effect on and the Company shall not have occurred that is continuing as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case, as of such date).
(b) The Company must have performed and complied with in all material respects all agreements, covenants and obligations required to be performed or complied with by the Company under this Agreement at or prior to the Closing.
(c) There shall not have occurred any Material Adverse Effect since the Effective Date.
(d) The Company must have delivered or caused to be delivered to Buyer the items required by Sections 3.2.
(e) All Affiliate Agreements set forth on Schedule 7.2(e) shall have been terminated, in each case, in all respects and without any further liability or obligation (including obligations that expressly survive the termination thereof) of the Company or any of the Subsidiaries.
(f) The waiting period (including any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act will have expired or been terminated, and all required filings will have been completed under the EUMR and the necessary approvals, clearances or consents under the EUMR will have been procured.;
(g) None of the parties hereto will be subject to any Order of a court of competent jurisdiction that prevents, makes illegal or prohibits Buyer shall have received an opinion from Xxxxx Day substantially in the consummation of the transactions contemplated by this Agreement.form attached as Exhibit A hereto; and
(h) No Governmental Authority the Company shall have enacted, issued or promulgated any Law that is in effect which prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement.
(i) The Company will have delivered to Buyer a statement prepared in accordance with Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3), together with the notice required to be filed with the IRS and written consents authorization for Buyer to timely file or waivers of appraisal rights by Stockholders that hold in cause to be timely filed such statement and notice with the aggregate such number of Shares equal to 95% or more of the SharesIRS.
(j) The Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the Lease, dated as of May 24, 2013, as amended, for the leased real property located at 000 Xxx-Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000.
Appears in 1 contract
Conditions to Obligations of Buyer and Merger Sub. The obligations of Buyer and Merger Sub to consummate the transactions contemplated by this Agreement are shall be subject to the satisfaction fulfillment or waiver (if permitted by applicable Law) Buyer’s waiver, at or prior to the Closing Closing, of each of the following conditions:
(a) 6.2.1 The representations and warranties of the Company set forth contained in Article IV (other than the Fundamental Representations) will this Agreement and any certificate delivered pursuant to Section 2.3 hereof shall be true and correct in all respects (without giving effect to in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material adverse effect qualifications contained thereinrespects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the Closing Date as though made date of this Agreement and on and as of the Closing Date with the same effect as though made at and as of such date (except to the extent such those representations and warranties speak that address matters only as of an earlier a specified date, in the accuracy of which case, shall be determined as of such date), except, in each case, where the failure of such representations and warranties to be so true and correct would not have a Material Adverse Effect on the Company. The Fundamental Representations will be true and correct that specified date in all respects (other than de minimis exceptions) as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case, as of such daterespects).
(b) 6.2.2 The Company must shall have duly performed and complied with in all material respects with all agreements, covenants and obligations conditions required by this Agreement to be performed or complied with by the Company under this Agreement at or it prior to or on the Closing Date.
6.2.3 No Action shall have been commenced against Buyer, Merger Sub or the Company, which would prevent the Closing.
(c) There 6.2.4 From the date of this Agreement, there shall not have occurred any Material Adverse Effect since that is continuing, nor shall any event or events have occurred that, individually or in the Effective Dateaggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.
(d) 6.2.5 The CRG Credit Agreement Amendment shall be in full force and effect, subject to consummation of the Merger. The Company must and its Subsidiaries, in the aggregate, shall not have any Indebtedness other than the CRG Closing Debt.
6.2.6 Free Cash at Closing shall be no less than $3.5 million. The aggregate Transaction Expenses plus Merger Consideration shall not exceed $3 million.
6.2.7 The Company shall have delivered or caused to be delivered to Buyer each of the items required by Sections 3.2closing deliverables set forth in Section 2.3.1.
(e) All Affiliate 6.2.8 The Buyer shall have received all the Resignations as required under Section 5.7.1.
6.2.9 The Key Employees Employment Agreements shall be in full force and effect as of the Closing.
6.2.10 Buyer shall have received evidence that the employment terms for the employees of the Company and of its Subsidiaries set forth on Schedule 7.2(e) 6.2.10 hereto shall have been terminatedamended, effective at or before the Closing, to the effect expressly set forth on Schedule 6.2.10 hereto.
6.2.11 Unless otherwise agreed to by Buyer, the time to submit an appraisal demand under Section 262 of the DGCL in each caseconnection with the Merger shall have expired, in all respects and without any further liability or obligation (including obligations that expressly survive the termination thereof) Dissenting Shares, if any, shall be no more than 5% of the Company or any Capital Stock issued and outstanding as of immediately prior to the SubsidiariesEffective Time.
(f) The waiting period (including any extension thereof) applicable 6.2.12 Buyer shall have received from the Company no later than the date the condition set forth in Section 6.1.4 has been satisfied, reasonable written evidence to the consummation of effect that the transactions contemplated hereby under the HSR Act will have expired or been terminated, and all required filings will Company Warrants have been completed under the EUMR and the necessary approvals, clearances or consents under the EUMR will have been procured.
(g) None of the parties hereto will be subject to any Order cancelled and terminated and of a court of competent jurisdiction that prevents, makes illegal no further force or prohibits effect no later than the consummation of the transactions contemplated by this AgreementEffective Time.
(h) No Governmental Authority shall have enacted, issued or promulgated any Law that is in effect which prevents, makes illegal or prohibits the consummation of the transactions contemplated by this Agreement.
(i) The Company will have delivered to Buyer written consents or waivers of appraisal rights by Stockholders that hold in the aggregate such number of Shares equal to 95% or more of the Shares.
(j) The Company will have delivered to Buyer written consent by 705 Tri-State Venture, LLC with respect to the Lease, dated as of May 24, 2013, as amended, for the leased real property located at 000 Xxx-Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000.
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Samples: Merger Agreement (TearLab Corp)
