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Common use of Conditions to Obligations of Buyer and Newco Clause in Contracts

Conditions to Obligations of Buyer and Newco. Neither Buyer nor NewCo shall be obligated to consummate the Merger unless and until Buyer delivers notice to the Company that it has elected to exercise its option to consummate the Merger pursuant to Section 1.2. Following Buyer's delivery and the Company's receipt of such notice, the obligation of each of Buyer and NewCo to consummate the Merger is subject to the satisfaction (or waiver by Buyer) of the following conditions: (a) a Company Material Adverse Effect shall not have occurred since the Most Recent Balance Sheet Date prior to the Closing; (b) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations for the Merger; (c) the representations and warranties of the Company set forth in Article II shall be true and correct in all material respects at and as of the Effective Time as if made as of the Effective Time, except for (i) changes reflected in the Disclosure Schedule or contemplated or permitted by this Agreement, (ii) those representations and warranties that address matters only as of a particular date (which shall be true and correct in all material respects as of such date, subject to clause (iii)), and (iii) where the failure of the representations and warranties to be true and correct in all material respects would not reasonably be expected to have a Company Material Adverse Effect; (d) the Company shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time; (e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) except as noted in Section 2.9 of the Disclosure Schedule, have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Company shall have delivered to Buyer and NewCo a certificate (the "Company Certificate") to the effect that each of the conditions specified in clauses (c) and (d) of this Section 6.1 is satisfied in all respects; (g) Buyer shall have received from counsel to the Company an opinion with respect to the matters set forth in Exhibit I hereto, addressed to Buyer and dated as of the Closing Date; (h) Buyer shall have received from the Company evidence satisfactory to Buyer that all outstanding Options have been exercised or forfeited, with no further claims of any nature based upon or derived from the Company's equity; (i) demands for appraisal of the fair value of Shares pursuant to the DGCL shall not have been exercised by holders of more than 10% of the outstanding Shares; and (j) Delivery Ready Status shall have been achieved; (k) The Company obtains the express written consent to consummate the Merger from all lenders from whom it has obtained financing (including without limitation the Senior Lender); and (l) up to 12 employees chosen by Buyer must have entered into an Employment Agreement pursuant to Section 1.2 hereto.

Appears in 1 contract

Samples: Merger Agreement (Faro Technologies Inc)

Conditions to Obligations of Buyer and Newco. Neither Notwithstanding any other provision of this Agreement, the obligations of Buyer nor NewCo shall be obligated and Newco to consummate the Merger unless and until Buyer delivers notice to the Company that it has elected to exercise its option to consummate the Merger pursuant to Section 1.2. Following Buyer's delivery and the Company's receipt of such notice, the obligation of each of Buyer and NewCo to consummate the Merger is other transactions contemplated hereby shall be subject to the satisfaction (satisfaction, at or waiver by Buyer) prior to the Closing Date, of the following conditions: (a) a Company Material Adverse Effect Buyer shall not have occurred since received executed and effective signature cards for all of the Most Recent Balance Sheet Date prior to the Closing;accounts referenced in Section 3.09(a) above. (b) Buyer shall have received a certificate of the Secretary of the Company shall have obtained all of dated the waivers, permits, consents, approvals or other authorizations for Closing Date in substantially the Merger;form attached as Annex B hereto. (c) Each Shareholder shall have executed a Shareholder Agreement with Buyer substantially in the representations form attached as Annex C hereto. (d) Buyer, the Escrow Agent and warranties the Representative shall have entered into the Escrow Agreement. (e) Buyer shall repay to Congress Financial Corporation ("Congress") -------- all amounts owing to Congress on the Closing Date under the Company's existing credit facility with Congress. (f) All authorizations, consents, waivers and approvals by or from third parties, except for Congress Financial Corporation, required for the consummation of the transactions contemplated hereby shall have been obtained and all Liens on the assets and properties of the Company set forth in Article II shall be true and correct in all material respects at and as of the Effective Time as if made as of the Effective Time, except for (iSchedule 6.01(g) changes reflected in the Disclosure Schedule or contemplated or permitted by this Agreement, (ii) those representations and warranties that address matters only as of a particular date (which shall be true and correct in all material respects as of such date, subject to clause (iii)), and (iii) where the failure of the representations and warranties to be true and correct in all material respects would not reasonably be expected to have a Company Material Adverse Effect; (d) the Company shall have performed been released or complied in all material respects with the agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time; (e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) except as noted in Section 2.9 of the Disclosure Schedule, have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Company shall have delivered to Buyer and NewCo a certificate (the "Company Certificate") to the effect that each of the conditions specified in clauses (c) and (d) of this Section 6.1 is satisfied in all respects;terminated. (g) Buyer shall have received from counsel All obligations, including without limitation debts, of the Company to the Company an opinion with respect to the matters set forth in Exhibit I hereto, addressed to Buyer and dated as of the Closing Date;Shareholders shall be extinguished. (h) Buyer All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall have received from the Company evidence be in form and substance reasonably satisfactory to Buyer that all outstanding Options have been exercised or forfeited, with no further claims of any nature based upon or derived from the Company's equity; (i) demands for appraisal of the fair value of Shares pursuant to the DGCL shall not have been exercised by holders of more than 10% of the outstanding Shares; and (j) Delivery Ready Status shall have been achieved; (k) The Company obtains the express written consent to consummate the Merger from all lenders from whom it has obtained financing (including without limitation the Senior Lender); and (l) up to 12 employees chosen by Buyer must have entered into an Employment Agreement pursuant to Section 1.2 heretoand its counsel.

Appears in 1 contract

Samples: Merger Agreement (Interiors Inc)

Conditions to Obligations of Buyer and Newco. Neither Notwithstanding any other provision of this Agreement, the obligations of Buyer nor NewCo shall be obligated and Newco to consummate the Merger unless and until Buyer delivers notice to the Company that it has elected to exercise its option to consummate the Merger pursuant to Section 1.2. Following Buyer's delivery and the Company's receipt of such notice, the obligation of each of Buyer and NewCo to consummate the Merger is other transactions contemplated hereby shall be subject to the satisfaction (satisfaction, at or waiver by Buyer) prior to the Closing Date, of the following conditions, compliance with which, or the occurrence of which, may be waived prior to the Closing in writing by Buyer and Newco in their sole discretion: (a) a Company Material Adverse Effect There shall not have occurred since be instituted and pending or threatened any Action (i) challenging the Most Recent Balance Sheet Date prior Merger or otherwise seeking to restrain or prohibit the Closing;consummation of the transactions contemplated hereby, or (ii) seeking to prohibit the direct or indirect ownership or operation by Buyer of all or a material portion of the business or assets of the Company, or to compel Buyer or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Buyer. (b) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations for the Merger; (c) the The representations and warranties of the Company set forth in Article II this Agreement shall be true and correct in all material respects at on and as of the Effective Time Closing Date with the same effect as if made as on the Closing Date, and the Company shall have complied with all covenants and agreements and satisfied all conditions on the Company's part to be performed or satisfied on or prior to the Closing Date. (c) Buyer shall have received a certificate of the Effective Time, except for President of the Company in substantially the form attached as Annex C hereto. (id) changes reflected Buyer shall have received a certificate of the Secretary of the Company dated the Closing Date in substantially the form attached as Annex D hereto. (e) Those certain executives and employees of the Company referenced on Schedule 6.01(e)(1) hereto shall each have entered into an Employment Agreement with the Surviving Corporation substantially in the Disclosure form attached hereto as Annex E and upon such additional terms for each executive or employee as set forth on Schedule or contemplated or permitted by this Agreement, (ii) those representations and warranties that address matters only as of a particular date (which shall be true and correct in all material respects as of such date, subject to clause (iii)6.01(e)(2), and (iii) where the failure those certain Shareholders of the representations Company referenced on Schedule 6.01(e)(3) shall each have entered into a Noncompetition, Nondisclosure and warranties to be true Nonsolicitation Agreement with the Surviving Corporation substantially in the form attached hereto as Annex F. (f) Buyer, the Escrow Agent and correct the Representative shall have entered into the Escrow Agreement in substantially the form attached as Annex B. (g) All authorizations, consents, waivers and approvals by or from third parties required for the consummation of the transactions contemplated hereby shall have been obtained and all material respects would not Liens on the assets and properties of the Company set forth on Schedule 6.01(g) shall have been released or terminated. (h) No act, event or condition shall have ccurred after the date hereof which Buyer determines has had or could reasonably be expected to have a Company Material Adverse Effect;. (di) Buyer shall have concluded (through its representatives, agents, accountants, legal counsel and other experts) satisfactorily an investigation, including without limitation legal and financial review, of the Company and shall be satisfied in its sole discretion with the results thereof. (j) All existing obligations of the Company to certain Shareholders of the Company, as more particularly set forth on Schedule 2.13(f), shall be extinguished by the Buyer through the issuance of a Promissory Note substantially in the form attached as Annex G hereto to each of the Shareholders. (k) The number of shares of Common Stock dissenting from approval of or refusing to participate in the Merger shall not exceed ten percent (10%) of the aggregate numbers of outstanding Shares. (l) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Buyer and its counsel. (m) Buyer shall repay to NationsBank, N.A. ("NB") all amounts owing to NB on the Closing Date in an amount not to exceed $650,000, and the Shareholders shall be released from any and all liability under the existing credit facility with NB. (n) Each Shareholder shall have performed or complied executed the Shareholder Agreement with Buyer substantially in the form attached as Annex H hereto. (o) Buyer shall have entered into financing arrangements upon terms and conditions satisfactory to it, in its discretion, and obtained all material respects with necessary consents from its lenders to enable Buyer to enter into the agreements and covenants required to be performed or complied with under this Agreement as of or transactions contemplated herein. (p) The Shareholders shall pay for all Transaction Fees incurred by the Company prior to the Effective Time;Closing Date as identified on Schedule 6.01(p); the Surviving Corporation shall not have any obligation with respect to any of such expenses. (eq) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) except as noted in Section 2.9 of the Disclosure Schedule, have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the The Company shall have delivered to Buyer and NewCo a certificate (the "Company Certificate") to the effect that each unaudited balance sheet of the conditions specified in clauses (c) Company at December 31, 1998, and (d) the related unaudited statements of this Section 6.1 is satisfied in all respects;income, shareholders' equity and cash flows for the year then ended. (g) Buyer shall have received from counsel to the Company an opinion with respect to the matters set forth in Exhibit I hereto, addressed to Buyer and dated as of the Closing Date; (h) Buyer shall have received from the Company evidence satisfactory to Buyer that all outstanding Options have been exercised or forfeited, with no further claims of any nature based upon or derived from the Company's equity; (i) demands for appraisal of the fair value of Shares pursuant to the DGCL shall not have been exercised by holders of more than 10% of the outstanding Shares; and (j) Delivery Ready Status shall have been achieved; (kr) The Company obtains shall have delivered to Buyer the express written consent release of the Company as guarantor under that Guaranty of Payment dated _________, 1998 relating to consummate the Merger from all lenders from whom it has obtained financing (including without limitation the Senior Lender); and (l) up to 12 employees chosen that certain Loan Agreement dated _________, 1998 by Buyer must have entered into an Employment Agreement pursuant to Section 1.2 hereto.and among SMC-Bacon Drive Limited Partnership and NationsBank, N.A.

Appears in 1 contract

Samples: Merger Agreement (Interiors Inc)

Conditions to Obligations of Buyer and Newco. Neither Notwithstanding any other provision of this Agreement, the obligations of Buyer nor NewCo shall be obligated and Newco to consummate the Merger unless and until Buyer delivers notice to the Company that it has elected to exercise its option to consummate the Merger pursuant to Section 1.2. Following Buyer's delivery and the Company's receipt of such notice, the obligation of each of Buyer and NewCo to consummate the Merger is other transactions contemplated hereby shall be subject to the satisfaction (satisfaction, at or waiver by Buyer) prior to the Closing Date, of the following conditions: (a) a Company Material Adverse Effect shall not have occurred since the Most Recent Balance Sheet Date prior to the Closing; (b) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations for the Merger; (c) the The representations and warranties of the Company set forth and the Shareholder in Article II this Agreement shall be true and correct in all material respects at on and as of the Effective Time Closing Date with the same effect as if made as on the Closing Date and each of the Effective TimeCompany and the Shareholder shall have complied with all covenants and agreements and satisfied all conditions on the Company's or the Shareholder's part, except as applicable, to be performed or satisfied on or prior to the Closing Date. (b) Buyer shall have received from Xxxxxxx X. Xxxxxx, Esq., counsel for the Company, a written opinion dated the Closing Date and addressed to Buyer and Newco, in substantially the form attached as Annex C hereto. ------- (c) Buyer shall have received a certificate of the president of the Company in substantially the form attached as Annex D hereto. ------- (i) changes reflected in Copies of resolutions of (A) the Disclosure Schedule or board of directors of the Company authorizing and approving the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered by the Company pursuant hereto, and of (B) the Company's shareholder evidencing approval of this Agreement and the transactions contemplated or permitted by this Agreement, hereby; (ii) those representations A certificate of incumbency certifying the names, titles and warranties signatures of the officers authorized to execute the documents referred to in subparagraph (i) above and further certifying that address matters only as the articles of a particular date (which shall be true incorporation and correct in all material respects as bylaws of such datethe Company delivered to Buyer at the time of, subject to clause (iii))or prior to, the execution of this Agreement have been validly adopted and have not been amended or modified; and (iii) where Such additional supporting documentation and other information with respect to the failure transactions contemplated hereby as Buyer or its counsel may reasonably request. (e) Xxxxxx Xxxxx shall have entered into a Non-Competition Agreement with Buyer which shall provide that Xx. Xxxxx shall not compete in the nutritional supplements business with the Company and Buyer for a period of three years after closing (but in no event less than one year after termination of employment with the Company), in substantially the form attached hereto as Annex F. ------- (f) The Shareholder and Buyer shall have entered into a Registration Rights Agreement in substantially the form attached hereto as Annex G. ------- (g) Buyer shall be satisfied, in its sole discretion, with the results of its due diligence investigation of the representations Company. (h) The Shareholder shall have entered into the Employment Agreement. (i) All authorizations, consents, waivers and warranties to be true approvals by or from third parties required for the consummation of the transactions contemplated hereby shall have been obtained and correct in all material respects would not Liens on the assets and properties of the Company shall have been released or terminated. (j) No act, event or condition shall have occurred after the date hereof which Buyer determines has had or could reasonably be expected to have a Company Material Adverse Effect; (d) the Company shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time; (e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) except as noted in Section 2.9 of the Disclosure Schedule, have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Company shall have delivered to Buyer and NewCo a certificate (the "Company Certificate") to the effect that each of the conditions specified in clauses (c) and (d) of this Section 6.1 is satisfied in all respects; (g) Buyer shall have received from counsel to the Company an opinion with respect to the matters set forth in Exhibit I hereto, addressed to Buyer and dated as of the Closing Date; (h) Buyer shall have received from the Company evidence satisfactory to Buyer that all outstanding Options have been exercised or forfeited, with no further claims of any nature based upon or derived from the Company's equity; (i) demands for appraisal of the fair value of Shares pursuant to the DGCL shall not have been exercised by holders of more than 10% of the outstanding Shares; and (j) Delivery Ready Status shall have been achieved;. (k) The Company obtains All corporate and other proceedings and actions taken in connection with the express written consent transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to consummate the Merger from all lenders from whom it has obtained financing (including without limitation the Senior Lender); andtransactions contemplated hereby shall be in form and substance reasonably satisfactory to Buyer and its counsel. (l) up to 12 employees chosen by Buyer must The Shareholder shall have entered into an Employment Agreement repaid the Company for any shareholder loans pursuant to Section 1.2 hereto8.1(e) and for any expenses pursuant to Section 8.4 ----------- hereof.

Appears in 1 contract

Samples: Merger Agreement (Advanced Nutraceuticals Inc)

Conditions to Obligations of Buyer and Newco. Neither Notwithstanding any other provision of this Agreement, the obligations of Buyer nor NewCo shall be obligated and Newco to consummate the Merger unless and until Buyer delivers notice to the Company that it has elected to exercise its option to consummate the Merger pursuant to Section 1.2. Following Buyer's delivery and the Company's receipt of such notice, the obligation of each of Buyer and NewCo to consummate the Merger is other transactions contemplated hereby shall be subject to the satisfaction (satisfaction, at or waiver by Buyer) prior to the Closing Date, of the following conditions: (a) a Company Material Adverse Effect The number of Dissenting Shares shall not have occurred since exceed five percent (5%) of the Most Recent Balance Sheet Date prior to aggregate number of outstanding Shares of Common Stock as of the Closing;Effective Time. (b) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations for the Merger; (c) the The representations and warranties of the Company set forth in Article II this Agreement shall be true and correct in all material respects at on and as of the Effective Time Closing Date with the same effect as if made as of on the Effective Time, except for (i) changes reflected in the Disclosure Schedule or contemplated or permitted by this Agreement, (ii) those representations Closing Date and warranties that address matters only as of a particular date (which shall be true and correct in all material respects as of such date, subject to clause (iii)), and (iii) where the failure of the representations and warranties to be true and correct in all material respects would not reasonably be expected to have a Company Material Adverse Effect; (d) the Company shall have performed or complied in with all material respects with the covenants and agreements and covenants required satisfied all conditions on the Company's part to be performed or complied with under this Agreement as of satisfied on or prior to the Effective Time;Closing Date. (e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) except as noted in Section 2.9 of the Disclosure Schedule, have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Company shall have delivered to Buyer and NewCo a certificate (the "Company Certificate") to the effect that each of the conditions specified in clauses (c) and (d) of this Section 6.1 is satisfied in all respects; (g) Buyer shall have received from Xxxxxxx, Xxxxxxx & Xxxxxxxx, LLP, counsel for the Company, a written opinion dated the Closing Date and addressed to Buyer and Newco, in substantially the form attached as Annex D hereto; (d) Buyer shall have received the written opinion of its counsel to the effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a)(2)(E) of the Code. (e) Buyer shall have received a certificate of the Company, signed by its President, in substantially the form attached as Annex E hereto. (f) Buyer shall have received the following under cover of a certificate of the Secretary of the Company an opinion dated the Closing Date in substantially the form attached as Annex F hereto: (i) Copies of resolutions (A) of the Board of Directors of the Company authorizing and approving the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered by the Company pursuant hereto, and (B) of the Company's shareholders evidencing the Requisite Shareholder Approval; (ii) A certificate of incumbency certifying the names, titles and signatures of the officers authorized to execute the documents referred to in subparagraph (i) above and further certifying that the Articles of Incorporation and Bylaws of the Company delivered to Buyer at the time of, or prior to, the execution of this Agreement have been validly adopted and have not been amended or modified; and (iii) Such additional supporting documen tation and other information with respect to the matters set forth transactions contemplated hereby as Buyer or its counsel may reasonably request. (g) The Buyer shall have received a letter from Xxxxxx Xxxxxxxx LLP, auditors for the Buyer, in Exhibit I heretoa form reasonably satisfactory to the Buyer, addressed to Buyer and dated confirming as of the Closing Date;Effective Time their letter as of the date of this Agreement to the effect that the Buyer may treat the Merger as a "pooling of interests" for accounting purposes (in order to issue such a letter Xxxxxx Xxxxxxxx LLP will need to receive a letter from Ernst & Young LLP addressed to the Company confirming as of the Effective Time their letter as of the date of this Agreement confirming the appropriateness of pooling of interests accounting for the Merger under Accounting Principles Board Opinion 16 if closed and consummated in accordance with this Agreement). (h) Buyer shall have received from the Company evidence satisfactory to Buyer that all outstanding Options have been exercised or forfeitedresignations, with no further claims effective as of any nature based upon or derived from the Effective Time, of each director of the Company's equity;. (i) demands for appraisal Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxx, Xxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx and Xxxxx X. Xxx shall each have entered into an employment agreement with the Surviving Corporation in substantially the form of Annex G hereto (the fair value of Shares pursuant to the DGCL shall not have been exercised by holders of more than 10% of the outstanding Shares; and"Employment Agreements"). --------------------- (j) Delivery Ready Status The persons named in subparagraph (i) above shall each have been achieved;executed a Covenant Not to Compete in favor of Buyer and the Surviving Corporation substantially in the form of Annex H attached hereto. (k) The Company obtains Buyer, the express written consent to consummate Company, the Merger from all lenders from whom it has obtained financing (including without limitation Escrow Agent and the Senior Lender); andRepresentative shall have entered into the Escrow Agreement. (l) up Buyer shall be satisfied, in its sole discretion, that the issuance of the Merger Consideration to 12 employees chosen the Shareholders in connection with the Merger shall be exempt from the registration and prospectus delivery requirements of the Securities Act. (m) Buyer shall have received from each Shareholder so indicated on Annex A an executed Affiliate Agreement substantially in the form of Annex I hereto. (n) Buyer shall have received from each Shareholder an Investment Intent Letter and Appointment of the Representative in substantially the form of Annex J hereto. (o) All shares of Preferred Stock shall have been converted into the Conversion Shares as contemplated by Section 2.06(a) hereof, and there shall be no shares of Preferred Stock outstanding. (p) Buyer shall have received reasonable assurances from those key employees, if any, of the Company that may be identified by Buyer must in its discretion that they will remain in the employ of the Company for a reasonable period of time after the consummation of the transactions contemplated hereby. (q) All authorizations, consents, waivers and approvals by or from third parties required for the consummation of the transactions contemplated hereby shall have entered into an Employment been obtained. (r) No act, event or condition shall have occurred after the date hereof which Buyer determines has had or could reasonably be expected to have a Material Adverse Effect. (s) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Buyer and its counsel. (t) Buyer shall be satisfied in its sole discretion that the Manufacturing Agreement between the Company and Xxxxxx Aircraft Company Sensors and Communications Systems Segment Microelectronics Division dated as of April 1, 1997 may not be terminated on sixty days' notice pursuant to Section 1.2 hereto2 thereof without the ability of the Company to place an order pursuant to Section 19 thereof.

Appears in 1 contract

Samples: Merger Agreement (Semtech Corp)

Conditions to Obligations of Buyer and Newco. Neither Notwithstanding any other provision of this Agreement, the obligations of Buyer nor NewCo shall be obligated and Newco to consummate the Merger unless and until Buyer delivers notice to the Company that it has elected to exercise its option to consummate the Merger pursuant to Section 1.2. Following Buyer's delivery and the Company's receipt of such notice, the obligation of each of Buyer and NewCo to consummate the Merger is other transactions contemplated hereby shall be subject to the satisfaction (satisfaction, at or waiver by Buyer) prior to the Closing Date, of the following conditions: (a) a Company Material Adverse Effect There shall not have occurred since be instituted and pending or threatened any Action before any Governmental Entity (i) challenging the Most Recent Balance Sheet Date prior Merger or otherwise seeking to restrain or prohibit the Closing;consummation of the transactions contemplated hereby, or (ii) seeking to prohibit the direct or indirect ownership or operation by Buyer of all or a material portion of the business or assets of the Company, or to compel Buyer or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Buyer. (b) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations for the Merger; (c) the The representations and warranties of the Company set forth Shareholders in Article II this Agreement shall be true and correct in all material respects at on and as of the Effective Time Closing Date with the same effect as if made as on the Closing Date and each of the Effective TimeCompany and each Shareholder shall have complied with all covenants and agreements and satisfied all conditions on the Company's or his or her part, except for as applicable, to be performed or satisfied on or prior to the Closing Date. (c) Buyer shall have received from each Shareholder a certificate dated the Closing Date in substantially the form attached as Annex C hereto. (d) Buyer shall have received a certificate of the President of the Company in substantially the form attached as Annex D hereto. (e) Buyer shall have received a certificate of the Secretary of the Company dated the Closing Date in substantially the form attached as Annex E hereto. (f) Each of Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxx and Xxxx X. Xxxxxxxx shall have entered into a Non-Competition Agreement with Buyer substantially in the form attached as Annex F hereto, and Xxxxxxx Xxxxxx shall have entered into a Nonsolicitation Agreement with Buyer substantially in the form attached as Annex N hereto. (g) Buyer, the Escrow Agent and the Representative shall have entered into the Escrow Agreement. (h) Buyer shall be satisfied, in its sole discretion, that the issuance of Buyer Common Stock to the Shareholders in connection with the Merger shall be exempt from the registration and prospectus delivery requirements of the Securities Act. (i) changes reflected in The authorizations, consents, waivers and approvals by or from third parties set forth on Schedule 6.01(i) required for the Disclosure Schedule or contemplated or permitted by this Agreement, (ii) those representations and warranties that address matters only as of a particular date (which shall be true and correct in all material respects as of such date, subject to clause (iii)), and (iii) where the failure consummation of the representations transactions contemplated hereby shall have been obtained and warranties to be true all Liens on the assets and correct properties of the Company set forth in all material respects would not Schedule 6.01(i) shall have been released or terminated. (j) No act, event or condition shall have occurred after the date hereof which Buyer determines has had or could reasonably be expected to have a Company Material Adverse Effect;. (d) the Company shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time; (e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) except as noted in Section 2.9 of the Disclosure Schedule, have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Company shall have delivered to Buyer and NewCo a certificate (the "Company Certificate") to the effect that each of the conditions specified in clauses (c) and (d) of this Section 6.1 is satisfied in all respects; (gk) Buyer shall have received from concluded (through its representatives, accountants, counsel to and other experts) satisfactorily an investigation of the Company an opinion and shall be satisfied in its sole discretion with respect to the matters set forth in Exhibit I hereto, addressed to Buyer and dated as of the Closing Date; (h) Buyer shall have received from the Company evidence satisfactory to Buyer that all outstanding Options have been exercised or forfeited, with no further claims of any nature based upon or derived from the Company's equity; (i) demands for appraisal of the fair value of Shares pursuant to the DGCL shall not have been exercised by holders of more than 10% of the outstanding Shares; and (j) Delivery Ready Status shall have been achieved; (k) The Company obtains the express written consent to consummate the Merger from all lenders from whom it has obtained financing (including without limitation the Senior Lender); andresults thereof. (l) up All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to 12 employees chosen by the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Buyer must have entered into an Employment Agreement pursuant to Section 1.2 heretoand its counsel.

Appears in 1 contract

Samples: Merger Agreement (Interiors Inc)

Conditions to Obligations of Buyer and Newco. Neither Notwithstanding -------------------------------------------- any other provision of this Agreement, the obligations of Buyer nor NewCo shall be obligated and Newco to consummate the Merger unless and until Buyer delivers notice to the Company that it has elected to exercise its option to consummate the Merger pursuant to Section 1.2. Following Buyer's delivery and the Company's receipt of such notice, the obligation of each of Buyer and NewCo to consummate the Merger is other transactions contemplated hereby shall be subject to the satisfaction (satisfaction, at or waiver by Buyer) prior to the Closing Date, of the following conditions: (a) a Company Material Adverse Effect shall not have occurred since the Most Recent Balance Sheet Date prior to the Closing; (b) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations for the Merger; (c) the The representations and warranties of the Company set forth and the Shareholders in Article II this Agreement shall be true and correct in all material respects at on and as of the Effective Time Closing Date with the same effect as if made as on the Closing Date and each of the Effective Time, except for (i) changes reflected in Company and the Disclosure Schedule or contemplated or permitted by this Agreement, (ii) those representations and warranties that address matters only as of a particular date (which shall be true and correct in all material respects as of such date, subject to clause (iii)), and (iii) where the failure of the representations and warranties to be true and correct in all material respects would not reasonably be expected to have a Company Material Adverse Effect; (d) the Company Shareholders shall have performed or complied in with all material respects with the covenants and agreements and covenants required satisfied all conditions on the Company's or the Shareholders' part, as applicable, to be performed or complied with under this Agreement as of satisfied on or prior to the Effective TimeClosing Date. (b) Buyer shall have received from Xxxxx Xxxx LLP, counsel for the Company, a written opinion dated the Closing Date and addressed to Buyer and Newco, in substantially the form attached as Annex C hereto. ------- (c) Buyer shall have received a certificate of the president of the Company in substantially the form attached as Annex D hereto and ------- certificates from each Shareholder substantially in the form attached as Annex ----- D-1 hereto. --- (i) Copies of resolutions of (A) the board of directors of the Company authorizing and approving the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered by the Company pursuant hereto, and of (B) the Company's shareholders evidencing approval of this Agreement and the transactions contemplated hereby; (ii) A certificate of incumbency certifying the names, titles and signatures of the officers authorized to execute the documents referred to in subparagraph (i) above and further certifying that the articles of incorporation and bylaws of the Company delivered to Buyer at the time of, or prior to, the execution of this Agreement have been validly adopted and have not been amended or modified; and (iii) Such additional supporting documentation and other information with respect to the transactions contemplated hereby as Buyer or its counsel may reasonably request. (e) no Legal Proceeding Xxxx Xxxxxxx and Xxxxx Xxxxxxx shall be pending or threatened wherein an unfavorable judgmenthave each entered into a Non-Competition Agreement with Buyer which shall provide for a broad form of non-competition with the Company and Buyer for a period of three years after closing, orderin substantially the form attached hereto as Annex F. In addition, decree------- Xxxxx Xxxxxxx shall enter into a modification of his Non-Competition Agreement providing that, stipulation or injunction would (i) prevent consummation in addition, he shall not compete in the business of any manufacturing nutritional supplements for a period of one year after the transactions contemplated by this Agreement, (ii) cause any termination of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) except as noted in Section 2.9 of the Disclosure Schedule, have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect;his employment with Buyer if his employment extends beyond three years. (f) the Company The Shareholders and Buyer shall have delivered to Buyer and NewCo entered into a certificate (Registration Rights Agreement in substantially the "Company Certificate") to the effect that each of the conditions specified in clauses (c) and (d) of this Section 6.1 is satisfied in all respects;form attached hereto as Annex ----- G. - (g) Buyer shall have received from counsel to be satisfied, in its sole discretion, with the Company an opinion with respect to the matters set forth in Exhibit I hereto, addressed to Buyer and dated as results of its due diligence investigation of the Closing Date;Company. (h) Buyer shall have received reasonable assurances from those key employees, if any, of the Company evidence satisfactory to that may be identified by Buyer in its discretion that all outstanding Options have been exercised or forfeited, with no further claims they will remain in the employ of any nature based upon or derived from the Company's equity;Surviving Corporation for a reasonable period of time after the consummation of the transactions contemplated hereby. (i) demands All authorizations, consents, waivers and approvals by or from third parties required for appraisal the consummation of the fair value transactions contemplated hereby shall have been obtained and all Liens on the assets and properties of Shares the Company shall have been released or terminated. (j) No act, event or condition shall have occurred after the date hereof which Buyer determines has had or could reasonably be expected to have a Material Adverse Effect on the Company. (k) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Buyer and its counsel. (l) The Shareholders shall have repaid the Company for any shareholder loans pursuant to Section 8.1(e) and for any expenses pursuant to Section 8.4 hereof. ----------- (m) ANI shall have theretofore received a true and complete list of (i) all licenses of or rights to Proprietary Information (including term, payment for and scope thereof) granted to the DGCL shall not have been exercised Company by holders others or to others by the Company and (ii) customers that represented in excess of more than 10% of the outstanding Shares; andCompany's sales of goods and services during the 12 months ended September 30, 1998, and (iii) suppliers from whom the Company purchased in excess of 10% of the Company's purchase of goods and services during the 12 months ended September 30, 1998. (jn) Delivery Ready Status ANI shall have been achieved; (k) The Company obtains the express written consent to consummate the Merger from all lenders from whom it has obtained financing (including without limitation the Senior Lender); and (l) up to 12 employees chosen by Buyer must have entered into an Employment Agreement pursuant received a true and complete list containing exceptions to Section 1.2 hereto.3.17. ------------

Appears in 1 contract

Samples: Merger Agreement (Advanced Nutraceuticals Inc)

Conditions to Obligations of Buyer and Newco. Neither Notwithstanding any other provision of this Agreement, the obligations of Buyer nor NewCo shall be obligated and Newco to consummate the Merger unless and until Buyer delivers notice to the Company that it has elected to exercise its option to consummate the Merger pursuant to Section 1.2. Following Buyer's delivery and the Company's receipt of such notice, the obligation of each of Buyer and NewCo to consummate the Merger is other transactions contemplated hereby shall be subject to the satisfaction (satisfaction, at or waiver by Buyer) prior to the Closing Date, of the following conditions: (a) a Company Material Adverse Effect There shall not have occurred since be instituted and pending or threatened any Action before any Governmental Entity (i) challenging the Most Recent Balance Sheet Date prior Merger or otherwise seeking to restrain or prohibit the Closing;consummation of the transactions contemplated hereby, or (ii) seeking to prohibit the direct or indirect ownership or operation by Buyer of all or a material portion of the business or assets of the Company, or to compel Buyer or the Company to dispose of or hold separate all or a material portion of the business or assets of the Company or Buyer. (b) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations for the Merger; (c) the The representations and warranties of the Company set forth Shareholders in Article II this Agreement shall be true and correct in all material respects at on and as of the Effective Time Closing Date with the same effect as if made as on the Closing Date and each of the Effective TimeCompany and each Shareholder shall have complied with all covenants and agreements and satisfied all conditions on the Company's or his or her part, except for as applicable, to be performed or satisfied on or prior to the Closing Date. (c) Buyer shall have received from each Shareholder executing this Agreement a certificate dated the Closing Date in substantially the form attached as Annex C hereto. (d) Buyer shall have received a certificate of the President of the Company in substantially the form attached as Annex D hereto. (e) Buyer shall have received a certificate of the Secretary of the Company dated the Closing Date in substantially the form attached as Annex E hereto. (f) Xxxxxx X. Xxxxxxxxx shall have entered into a Non- Competition Agreement with Buyer substantially in the form attached as Annex F hereto. (g) Buyer, the Escrow Agent and the Representative shall have entered into the Escrow Agreement. (h) Buyer shall be satisfied, in its reasonable discretion, that the issuance of Buyer Common Stock to the Shareholders in connection with the Merger shall be exempt from the registration and prospectus delivery requirements of the Securities Act. (i) changes reflected in All authorizations, consents, waivers and approvals by or from third parties required for the Disclosure Schedule or contemplated or permitted by this Agreement, (ii) those representations and warranties that address matters only as of a particular date (which shall be true and correct in all material respects as of such date, subject to clause (iii)), and (iii) where the failure consummation of the representations transactions contemplated hereby shall have been obtained and warranties all Liens on the assets and properties of the Company shall have been released or terminated or the Shareholders have made adequate provision for the lack thereof reasonably acceptable to be true and correct in all material respects would not the Buyer. (j) No act, event or condition shall have occurred after the date hereof which Buyer determines has had or could reasonably be expected to have a Company Material Adverse Effect;. (dk) Each Subsidiary of the Company shall have performed or complied in all material respects been merged with the agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time; (e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation or (iii) except as noted in Section 2.9 of the Disclosure Schedule, have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect; (f) the Company shall have delivered to Buyer and NewCo a certificate (the "Company Certificate") to the effect that each of the conditions specified in clauses (c) and (d) of this Section 6.1 is satisfied in all respects; (g) Buyer shall have received from counsel to the Company an opinion with respect to the matters set forth in Exhibit I hereto, addressed to Buyer and dated as of the Closing Date; (h) Buyer shall have received from the Company evidence satisfactory to Buyer that all outstanding Options have been exercised or forfeited, with no further claims of any nature based upon or derived from into the Company's equity; (i) demands for appraisal of the fair value of Shares pursuant to the DGCL shall not have been exercised by holders of more than 10% of the outstanding Shares; and (j) Delivery Ready Status shall have been achieved; (k) The Company obtains the express written consent to consummate the Merger from all lenders from whom it has obtained financing (including without limitation the Senior Lender); and. (l) up All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to 12 employees chosen by the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Buyer must have entered into an Employment Agreement pursuant to Section 1.2 heretoand its counsel.

Appears in 1 contract

Samples: Merger Agreement (Interiors Inc)

Conditions to Obligations of Buyer and Newco. Neither Notwithstanding any other provision of this Agreement, the obligations of Buyer nor NewCo shall be obligated and Newco to consummate the Merger unless and until Buyer delivers notice to the Company that it has elected to exercise its option to consummate the Merger pursuant to Section 1.2. Following Buyer's delivery and the Company's receipt of such notice, the obligation of each of Buyer and NewCo to consummate the Merger is other transactions contemplated hereby shall be subject to the satisfaction (satisfaction, at or waiver by Buyer) prior to the Closing Date, of the following conditions: (a) a Company Material Adverse Effect The number of Dissenting Shares shall not have occurred since exceed ten percent (10%) of the Most Recent Balance Sheet Date prior to aggregate number of outstanding Shares of Company Common Stock as of the Closing;Effective Time. (b) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations for the Merger; (c) the The representations and warranties of the Company set forth in Article II this Agreement shall be true and correct in all material respects at on and as of the Effective Time Closing Date with the same effect as if made as of on the Effective Time, except for (i) changes reflected in Closing Date and the Disclosure Schedule or contemplated or permitted by this Agreement, (ii) those representations Company shall have complied with all covenants and warranties that address matters only as of a particular date (which shall be true agreements and correct in satisfied all material respects as of such date, subject to clause (iii)), and (iii) where conditions on the failure of the representations and warranties Company's part to be true performed or satisfied on or prior to the Closing Date. (c) Buyer shall have received from Hall, Farley, Oberrecht & Xxxxxxx, counsel for the Company, a written opinion dated the Closing Date and correct addressed to Buyer and Newco, in all material respects would not reasonably be expected to have a Company Material Adverse Effectsubstantially the form attached as Annex D hereto; (d) the Company Buyer shall have performed or complied in all material respects with received the agreements and covenants required to be performed or complied with under this Agreement as written opinion of or prior its counsel to the Effective Time;effect that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code. (e) no Legal Proceeding Buyer shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any have received a certificate of the transactions contemplated Company, signed by this Agreementits President, (ii) cause any of in substantially the transactions contemplated by this Agreement to be rescinded following consummation or (iii) except form attached as noted in Section 2.9 of the Disclosure Schedule, have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction shall be in effect;Annex E hereto. (f) the Company Buyer shall have delivered to Buyer and NewCo received a certificate (the "Company Certificate") to the effect that each of the conditions specified Founders, signed by each Founder, in clauses (c) and (d) of this Section 6.1 is satisfied in all respects;substantially the form attached as Annex F hereto. (g) Buyer shall have received from counsel to the following under cover of a certificate of the Secretary of the Company an opinion dated the Closing Date in substantially the form attached as Annex G hereto: (i) Copies of resolutions (A) of the Board of Directors of the Company authorizing and approving the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered by the Company pursuant hereto and thereto, and (B) of the Company's shareholders evidencing the Requisite Shareholder Approval; (ii) A certificate of incumbency certifying the names, titles and signatures of the officers authorized to execute the documents referred to in subparagraph (i) above and further certifying that the Articles of Incorporation and Bylaws of the Company delivered to Buyer at the time of, or prior to, the execution of this Agreement have been validly adopted and have not been amended or modified; and (iii) True and complete copies of the Financial Statements; and (iv) Such additional supporting documentation and other information with respect to the matters set forth in Exhibit I hereto, addressed to transactions contemplated hereby as Buyer and dated as of the Closing Date;or its counsel may reasonably request. (h) Buyer shall have received from the Company evidence satisfactory to Buyer that all outstanding Options have been exercised or forfeitedresignations, with no further claims effective as of any nature based upon or derived from the Effective Time, of each member of the Company's equity;board of directors. (i) demands for appraisal Each of the fair value Founders shall each have executed a Covenant Not to Compete in favor of Shares pursuant to Buyer, effective concurrently with the DGCL shall not have been exercised by holders Closing, substantially in the form of more than 10% of the outstanding Shares; andAnnex H attached hereto. (j) Delivery Ready Status Buyer, the Company, the Escrow Agent and the Representative shall have been achieved;entered into the Escrow Agreement. (k) The Company obtains Buyer shall have received from each Employee Shareholder so indicated on Annex I an executed Lock-Up Agreement substantially in the express written consent to consummate the Merger from all lenders from whom it has obtained financing (including without limitation the Senior Lender); andform of Annex J hereto. (l) up All material authorizations, consents, waivers and approvals by or from third parties required for the consummation of the transactions contemplated hereby shall have been obtained, and all Liens on the assets and properties of the Company shall have been released or terminated. (m) No act, event or condition shall have occurred after the date hereof that has had or could reasonably be expected to 12 employees chosen by have a Material Adverse Effect on the Company. (n) All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated hereby shall be in form and substance reasonably satisfactory to Buyer must and its counsel. (o) The Company shall have entered into an Employment Agreement pursuant completed the audit of the Financial Statements which shall not result in a material adverse change from the Financial Statements, appended to Section 1.2 heretoSchedule 3.04, for the respective periods covered therein. (p) The Company shall have applied for registration and subsequent bonding of its online sweepstakes game in New York and Florida and Buyer shall be reasonably satisfied with the consequences thereof.

Appears in 1 contract

Samples: Merger Agreement (L90 Inc)

Conditions to Obligations of Buyer and Newco. Neither Notwithstanding any other provision of this Agreement, the obligations of Buyer nor NewCo shall be obligated and Newco to consummate the Merger unless and until Buyer delivers notice to the Company that it has elected to exercise its option to consummate the Merger pursuant to Section 1.2. Following Buyer's delivery and the Company's receipt of such notice, the obligation of each of Buyer and NewCo to consummate the Merger is other transactions contemplated hereby shall be subject to the satisfaction (satisfaction, at or waiver by Buyer) prior to the Closing Date, of the following conditions: (a) a Company Material Adverse Effect shall not have occurred since the Most Recent Balance Sheet Date prior to the Closing; (b) the Company shall have obtained all of the waivers, permits, consents, approvals or other authorizations for the Merger; (c) the The representations and warranties of the Company set forth and the Shareholders in Article II this Agreement shall be true and correct in all material respects at on and as of the Effective Time Closing Date with the same effect as if made as on the Closing Date and each of the Effective TimeCompany and the Shareholders shall have complied with all covenants and agreements and satisfied all conditions on the Company's or the Shareholders' part, except as applicable, to be performed or satisfied on or prior to the Closing Date. (b) Buyer shall have received from Ferrari, Olsen, Xxxxxxxx & Xxxx, LLP, counsel for the Company, a written opinion dated the Closing Date and addressed to Buyer and Newco, in substantially the form attached as Annex C ------- hereto. (c) Buyer shall have received a certificate of the President of the Company in substantially the form attached as Annex D hereto. ------- (i) changes reflected in Copies of resolutions of (A) the Disclosure Schedule or board of directors of each Company authorizing and approving the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered by the Company pursuant hereto, and of (B) each Company's shareholders evidencing approval of this Agreement and the transactions contemplated or permitted by this Agreement, hereby; (ii) those representations A certificate of incumbency certifying the names, titles and warranties signatures of the officers authorized to execute the documents referred to in subparagraph (i) above and further certifying that address matters only the articles of incorporation and bylaws of each Company delivered to Buyer at the time of, or prior to, the execution of this Agreement have been validly adopted and have not been amended or modified; and (iii) Such additional supporting documentation and other information with respect to the transactions contemplated hereby as Buyer or its counsel may reasonably request. (e) X.X. Xxxxx and Xxxxx Xxxxx shall have entered into a Non- Competition Agreement with Buyer which shall provide for a broad form of non- competition with the Company and Buyer for a particular date period of three years after closing (but in no event less than one year after termination of employment with the Company), in substantially the form attached hereto as Annex F. ------- (f) The Shareholders and Buyer shall have entered into a Registration Rights Agreement in substantially the form attached hereto as Annex G, the terms ------- of which shall be true and correct no less favorable than those of any other stockholder of Buyer on the Closing Date. (g) Buyer shall be satisfied, in all material respects as its sole discretion, with the results of such date, subject to clause (iii)), and (iii) where the failure its due diligence investigation of the representations Company. (h) The Shareholders shall have entered into the Employment Agreement and warranties to be true the Consulting Agreement, respectively. (i) All authorizations, consents, waivers and correct in approvals by or from third parties required for the consummation of the transactions contemplated hereby shall have been obtained and all material respects would not Liens on the assets and properties of the Company shall have been released or terminated. (j) No act, event or condition shall have occurred after the date hereof which Buyer determines has had or could reasonably be expected to have a Company Material Adverse Effect;. (dk) the Company shall have performed or complied All corporate and other proceedings and actions taken in all material respects connection with the agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time; (e) no Legal Proceeding shall be pending or threatened wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreementhereby and all certificates, (ii) cause any of opinions, agreements, instruments, releases and documents referenced herein or incident to the transactions contemplated by this Agreement to be rescinded following consummation or (iii) except as noted in Section 2.9 of the Disclosure Schedule, have a Company Material Adverse Effect, and no such judgment, order, decree, stipulation or injunction hereby shall be in effect; (f) the Company shall have delivered form and substance reasonably satisfactory to Buyer and NewCo a certificate its counsel. (l) The Shareholders shall have repaid the "Company Certificate") for any shareholder loans pursuant to the effect that each of the conditions specified in clauses (cSection 8.1(e) and (d) of this for any expenses pursuant to Section 6.1 is satisfied in all respects;8.4 ----------- hereof. (gm) Buyer shall have theretofore received from counsel to a true and complete list of (a) the Company an opinion with respect to the matters set forth in Exhibit I hereto, addressed to Buyer names and dated as addresses of the Closing Date; (h) Buyer shall have received from the Company evidence satisfactory to Buyer that all outstanding Options have been exercised or forfeited, with no further claims of any nature based upon or derived from the Company's equity; (i) demands for appraisal customers that represented in excess of the fair value of Shares pursuant to the DGCL shall not have been exercised by holders of more than 10% of the outstanding Shares; and Company's sales of goods and services during the 12 months ended on September 30, 1998 and (jii) Delivery Ready Status shall have been achieved; (k) The Company obtains the express written consent to consummate the Merger from all lenders suppliers from whom it has obtained financing the Company purchased in excess of 10% of the Company's purchase of goods and services during the 12 months ended on September 30, 1998 and (b) all licenses of or rights to Proprietary Information granted to the Company by others or by others to the Company with a description (including without limitation the Senior Lenderterm, payment for and scope thereof); and (l) up to 12 employees chosen by Buyer must have entered into an Employment Agreement pursuant to Section 1.2 hereto.

Appears in 1 contract

Samples: Merger Agreement (Advanced Nutraceuticals Inc)