Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Closing is subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, of all the following further conditions: (a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date. (b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole. (c) Since the date of this Agreement, there shall not have occurred any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncured. (d) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2. (e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands. (f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing. (g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent. (h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement are further subject to the satisfactionfulfillment (or waiver by Parent and Merger Sub, in their sole discretion and if permitted under applicable Law), at or before the waiver in Parent’s sole and absolute discretionClosing, of all each of the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all Other than the representations and warranties of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to contained in Section 3.1 (Organization and Power), Section 3.2 (Authority), Section 3.3 (Capitalization; Subsidiaries; Indebtedness), Section 3.5 (Financial Statements), and Section 3.14 (Brokerage) (collectively, the Closing Date.
(b) The “Company Specified Representations and Warranties”), the representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality any certificate or Material Adverse Effect), shall other writing delivered pursuant hereto will be true and correct in all respects at (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date of this Agreement hereof and on and as of the Closing Date with the same effect as if though made at and as of such date (except to the extent those representations and warranties that any such representation and warranty is expressly made address matters only as of a specific specified date, the accuracy of which will be determined as of that specified date in which case such representation all respects). The Company Specified Representations and warranty shall Warranties will be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such specific date), except, in each case, for any failure of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which will be determined as of that specified date in all respects).
(disregarding b) The Company will have duly performed and complied in all qualifications material respects with all agreements, covenants, and exceptions contained therein relating to materiality or Material Adverse Effect) conditions required by this Agreement to be so true performed or complied with by it before or on the Closing Date; provided, that, with respect to agreements, covenants and correct conditions that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of are qualified by materiality, the Company Group will have performed such agreements, covenants and conditions, as a wholeso qualified, in all respects.
(c) Since Parent will have received a copy of (i) the completed Audited Financial Statements, (ii) any unaudited quarterly financial statements completed since December 31, 2015 (the “Post-2015 Quarterly Financial Statements”), and (iii) unaudited monthly financial statements for any calendar months not included in the most recent Post-2015 Quarterly Financial Statement.
(d) From the date of this Agreement, there shall will not have occurred any Effect Material Adverse Effect, nor will any event or events have occurred that, individually or in respect the aggregate, with or without the lapse of the Company Grouptime, that individually, or together with any other Effect since the date of this Agreement, has had or would could reasonably be expected to have result in a Material Adverse Effect Effect.
(e) Parent will have received each of the following documents, in each case duly executed (if applicable) by each party thereto other than Parent and in form and substance reasonably acceptable to Parent:
(i) an escrow agreement, among Representative, Parent, and the Escrow Agent, in form and substance satisfactory to each of them (the “Escrow Agreement”);
(ii) a paying agent agreement among Representative, Parent, and the Paying Agent, in form and substance satisfactory to each of them (the “Paying Agent Agreement”);
(iii) such documents, signed by Representative and/or by each Former Equity Owner who may receive Parent Shares pursuant to this Agreement, as may be required to authorize the Transfer Agent to transfer to Parent, if and to the extent required by this Agreement, any Escrowed Shares that are to be held in the name of each Former Equity Owner, all in form and substance reasonably satisfactory to Parent and the Transfer Agent;
(iv) employment agreements with each of Tix Xxxxx, Ruxx Xxxxx, Daxxx Xxxxxx, and Jox Xxxxxx, each of which provides for compensation not less than the levels in effect before the execution of this Agreement and will include an agreement not to compete with the Business (as defined in this Agreement) for one year following termination of employment, and such other provisions as may be mutually agreed upon by Parent and the respective officer (collectively, the “Employment Agreements”);
(v) copies of all consents to be obtained in order to consummate the transactions contemplated by this Agreement with respect to the agreements identified on Schedule 6.2(e)(v);
(vi) invoices reflecting the Company Transaction Expenses;
(vii) written resignations of such managers and officers, if any, of the BioD Companies as may be requested by Parent;
(viii) a waiver by each of the Equity Owners of the applicability of the “right of first refusal” provisions in the Company’s Organizational Documents;
(ix) a certificate, in form and substance reasonably acceptable to Parent, dated as of the Closing Date and signed by a duly authorized officer of the Company, certifying that, pursuant to Treasury Regulations Section 1.1445-11T(d)(2), either (A) 50% or more of the value of the gross assets of the Company Group as a whole which is continuing and uncured.does not consist of “United States real property interests” (within the meaning of Section 897(c)(1)(A) of the Code) or (B) 90% or more of the value of the gross assets of the Company does not consist of “United States real property interests” plus cash or cash equivalents; and
(dx) Parent shall have received a A certificate, dated as of the Closing Date, Date and signed by the Chief Executive Officer a duly authorized officer of the Company, certifying that, pursuant to Treasury Regulations Section 1.1445-2(b), the Company certifying is not a foreign person within the accuracy meaning of Section 1445 of the provisions of the foregoing clauses (a)Code, (b) in form and (c) of this Section 9.2substance reasonably acceptable to Parent.
(ef) Parent shall will have received a certificatecertificate of a duly authorized officer of the Company, dated current as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of certifying:
(i) that the Memorandum amounts set forth on the Closing Payment Spreadsheet as Company Transaction Expenses are accurate and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islandscomplete; and
(ii) copies of resolutions duly adopted by that the Board of Directors information set forth on the updated Unit Table that is part of the Company authorizing this Agreement, the Additional Agreements to which the Company Closing Payment Spreadsheet is a party accurate and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islandscomplete.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Closing is Merger shall also be subject to the satisfaction, satisfaction or waiver by Parent at or prior to the waiver in Parent’s sole and absolute discretion, Effective Time of all the following further conditions:
(a) The Company shall have duly performed or complied with, representations and warranties set forth in:
(i) Article IV (other than in all material respects, all the case of its obligations the representations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers warranties contained thereinin Sections 4.4(a) by the Company at or prior to the Closing Date.
and (b) The representations and warranties of the Company contained in this Agreement (4.12(a)), disregarding all qualifications and exceptions contained therein relating to materiality or materiality, Material Adverse Effect)Effect or words of similar import, shall be true and correct in all respects at and as of on the date of this Agreement hereof and at and as of the Closing Date as if made on and as of such date dates (except to the extent for representations and warranties that any such representation and warranty is expressly are made as of a specific specified date, in which case such representation and warranty shall be true and correct at and only as of such specific specified date), exceptwith only such exceptions as would not, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality individually or Material Adverse Effect) to be so true and correct that would not in the aggregate aggregate, have or reasonably be expected to have a Material Adverse Effect in respect on MUSA;
(ii) Sections 4.4(a) and (b) shall be true and correct on the date hereof and at and as of the Company Group Closing Date as if made on and as of such dates (except for representations and warranties that are made as of a wholespecified date, which shall be true and correct only as of such specified date) with only such exceptions as would not, individually or in the aggregate, (A) result or reasonably be expected to result in the payment of additional amounts under Article II hereof in excess of $100,000 or (B) impose any other liability on Parent, Merger Sub or the Surviving Corporation; and
(iii) Section 4.12(a) shall be true and correct in all respects on the date hereof and at and as of the Closing Date as if made on and as of the date hereof.
(b) MUSA shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material” or “Material Adverse Effect,” in which case MUSA shall have performed and complied with all of such covenants in all respects through the Closing.
(c) MUSA shall have delivered to Parent a certificate duly executed by an authorized officer on behalf of MUSA to the effect that each of the conditions specified in Sections 6.2(a) and (b) is satisfied in all respects.
(d) The Debt Financing shall have been obtained by Parent and Merger Sub on the terms and conditions set forth in the Debt Financing Agreement, or alternative financing (sufficient, when taken together with the proceeds from the Equity Financing, to pay the Required Amounts) as provided in Section 5.2(b) shall have been obtained.
(e) The Employment Agreement shall not have been terminated and shall remain in full force and effect as of the Closing Date; provided, however, that a termination of the Employment Agreement or a failure of the Employment Agreement to remain in full force and effect as of the Closing Date shall not be deemed to be a failure of the condition set forth in this Section 6.2(e) if such termination or failure to remain in full force and effect is solely a result of (i) Lxxxxxxx Xxxxxxxxx being unable to perform his duties thereunder due to his death or Disability (as defined in the Employment Agreement), (ii) Lxxxxxxx Xxxxxxxxx’x termination thereunder “without Cause” (as defined in the Employment Agreement) or “without Good Reason” (as defined in the Employment Agreement) or (iii) a commission of an act by Lxxxxxxx Xxxxxxxxx which would not have constituted Cause under the Employment Agreement if the word “significantly” preceded the words “adversely impact” in Section 3(b)(viii) of the Employment Agreement.
(f) Holders of not more than 10% of the outstanding shares of MUSA Common Stock shall have demanded and validly perfected appraisal of their MUSA Common Stock in accordance with the DGCL.
(g) (i) Any consent or approval required under the agreements, contracts or other instruments listed on Annex 6.2(g) as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby shall have been received by MUSA, and no such consent or approval shall have been revoked and (ii) all other consents or approvals required under any of the other agreements, contracts or other instruments to which MUSA or any of its subsidiaries is a party (or by which it or any of its respective properties or assets is bound) as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby shall have been received by MUSA (and no such consent or approval shall have been revoked), except for such consents or approvals (A) which are listed in Section 4.5(b) of the MUSA Disclosure Schedules or (B) the failure of which to obtain and not be revoked would not, individually or in the aggregate, materially adversely affect the operation of the business of Surviving Corporation and its subsidiaries from and after the Closing nor result in any material liability.
(h) Since the date of this Agreement, there shall has not been any Material Adverse Effect on MUSA or any event, change, effect or development that would, individually or in the aggregate, have occurred any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncuredon MUSA.
(d) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Metals USA Plates & Shapes Southcentral, Inc.)
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement are further subject to the satisfactionfulfillment (or waiver by Parent and Merger Sub, in their sole discretion and if permitted under applicable Law), at or before the waiver in Parent’s sole and absolute discretionClosing, of all each of the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all Other than the representations and warranties of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to contained in Section 3.1 (Organization and Power), Section 3.2 (Authority), Section 3.3 (Capitalization; Subsidiaries; Indebtedness), Section 3.5 (Financial Statements), and Section 3.14 (Brokerage) (collectively, the Closing Date.
(b) The “Company Specified Representations and Warranties”), the representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality any certificate or Material Adverse Effect), shall other writing delivered pursuant hereto will be true and correct in all respects at (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date of this Agreement hereof and on and as of the Closing Date with the same effect as if though made at and as of such date (except to the extent those representations and warranties that any such representation and warranty is expressly made address matters only as of a specific specified date, the accuracy of which will be determined as of that specified date in which case such representation all respects). The Company Specified Representations and warranty shall Warranties will be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such specific date), except, in each case, for any failure of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which will be determined as of that specified date in all respects).
(disregarding b) The Company will have duly performed and complied in all qualifications material respects with all agreements, covenants, and exceptions contained therein relating to materiality or Material Adverse Effect) conditions required by this Agreement to be so true performed or complied with by it before or on the Closing Date; provided, that, with respect to agreements, covenants and correct conditions that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of are qualified by materiality, the Company Group will have performed such agreements, covenants and conditions, as a wholeso qualified, in all respects.
(c) Since Parent will have received a copy of (i) the completed Audited Financial Statements, (ii) any unaudited quarterly financial statements completed since December 31, 2015 (the “Post-2015 Quarterly Financial Statements”), and (iii) unaudited monthly financial statements for any calendar months not included in the most recent Post-2015 Quarterly Financial Statement.
(d) From the date of this Agreement, there shall will not have occurred any Effect Material Adverse Effect, nor will any event or events have occurred that, individually or in respect the aggregate, with or without the lapse of the Company Grouptime, that individually, or together with any other Effect since the date of this Agreement, has had or would could reasonably be expected to have result in a Material Adverse Effect Effect.
(e) Parent will have received each of the following documents, in each case duly executed (if applicable) by each party thereto other than Parent and in form and substance reasonably acceptable to Parent:
(i) an escrow agreement, among Representative, Parent, and the Escrow Agent, in form and substance satisfactory to each of them (the “Escrow Agreement”);
(ii) a paying agent agreement among Representative, Parent, and the Paying Agent, in form and substance satisfactory to each of them (the “Paying Agent Agreement”); **** This material has been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
(iii) such documents, signed by Representative and/or by each Former Equity Owner who may receive Parent Shares pursuant to this Agreement, as may be required to authorize the Transfer Agent to transfer to Parent, if and to the extent required by this Agreement, any Escrowed Shares that are to be held in the name of each Former Equity Owner, all in form and substance reasonably satisfactory to Parent and the Transfer Agent;
(iv) employment agreements with each of Xxx Xxxxx, Xxxx Xxxxx, Xxxxx Xxxxxx, and Xxx Xxxxxx, each of which provides for compensation not less than the levels in effect before the execution of this Agreement and will include an agreement not to compete with the Business (as defined in this Agreement) for one year following termination of employment, and such other provisions as may be mutually agreed upon by Parent and the respective officer (collectively, the “Employment Agreements”);
(v) copies of all consents to be obtained in order to consummate the transactions contemplated by this Agreement with respect to the agreements identified on Schedule 6.2(e)(v);
(vi) invoices reflecting the Company Transaction Expenses;
(vii) written resignations of such managers and officers, if any, of the BioD Companies as may be requested by Parent;
(viii) a waiver by each of the Equity Owners of the applicability of the “right of first refusal” provisions in the Company’s Organizational Documents;
(ix) a certificate, in form and substance reasonably acceptable to Parent, dated as of the Closing Date and signed by a duly authorized officer of the Company, certifying that, pursuant to Treasury Regulations Section 1.1445-11T(d)(2), either (A) 50% or more of the value of the gross assets of the Company Group as a whole which is continuing and uncured.does not consist of “United States real property interests” (within the meaning of Section 897(c)(1)(A) of the Code) or (B) 90% or more of the value of the gross assets of the Company does not consist of “United States real property interests” plus cash or cash equivalents; and
(dx) Parent shall have received a A certificate, dated as of the Closing Date, Date and signed by the Chief Executive Officer a duly authorized officer of the Company, certifying that, pursuant to Treasury Regulations Section 1.1445-2(b), the Company certifying is not a foreign person within the accuracy meaning of Section 1445 of the provisions of the foregoing clauses (a)Code, (b) in form and (c) of this Section 9.2substance reasonably acceptable to Parent.
(ef) Parent shall will have received a certificatecertificate of a duly authorized officer of the Company, dated current as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of certifying:
(i) that the Memorandum amounts set forth on the Closing Payment Spreadsheet as Company Transaction Expenses are accurate and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islandscomplete; and
(ii) copies of resolutions duly adopted by that the Board of Directors information set forth on the updated Unit Table that is part of the Company authorizing this Agreement, the Additional Agreements to which the Company Closing Payment Spreadsheet is a party accurate and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islandscomplete.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction, fulfillment or the waiver in Parent’s sole and absolute discretionwaiver, at or prior to the Closing, of all each of the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications Agreement, the Ancillary Agreements and exceptions contained therein relating to materiality any certificate or Material Adverse Effect), other writing delivered pursuant hereto shall be true and correct in all respects at (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date of this Agreement hereof and on and as of the Closing Date with the same effect as if though made at and as of such date (except to the extent those representations and warranties that any such representation and warranty is expressly made address matters only as of a specific specified date, in the accuracy of which case such representation and warranty shall be true and correct at and determined as of such specific datethat specified date in all respects).
(b) The Company shall have duly performed and complied in all material respects with all agreements, except, in covenants and conditions required by this Agreement and each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) the Ancillary Agreements to be so true and correct that would not in performed or complied with by it prior to or on the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a wholeClosing Date.
(c) Since No Action shall have been threatened in writing or commenced against Parent, Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) From the date of this Agreement, there shall not have occurred any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect Change (as defined in respect the Letter of the Company Group as a whole which is continuing and uncured.
(d) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (aIntent), (b) and (c) of this Section 9.2.
(e) Parent The Company shall have received a certificate, dated as delivered each of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islandsclosing deliverables set forth in Section 2.3(a).
(f) Each of The Company shall pay the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior Specified Bonuses/Payments to the ClosingPersons set forth on Schedule 7.2(f) attached hereto, which payments shall be deducted as Transaction Expenses from the Purchase Price.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Realpage Inc)
Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Closing is Merger shall also be subject to the satisfaction, satisfaction or waiver by Parent at or prior to the waiver in Parent’s sole and absolute discretion, Effective Time of all the following further conditions:
(a) The Company shall have duly performed or complied with, representations and warranties set forth in:
(i) Article IV (other than in all material respects, all the case of its obligations the representations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers warranties contained thereinin Sections 4.4(a) by the Company at or prior to the Closing Date.
and (b) The representations and warranties of the Company contained in this Agreement (4.12(a)), disregarding all qualifications and exceptions contained therein relating to materiality or materiality, Material Adverse Effect)Effect or words of similar import, shall be true and correct in all respects at and as of on the date of this Agreement hereof and at and as of the Closing Date as if made on and as of such date dates (except to the extent for representations and warranties that any such representation and warranty is expressly are made as of a specific specified date, in which case such representation and warranty shall be true and correct at and only as of such specific specified date), exceptwith only such exceptions as would not, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality individually or Material Adverse Effect) to be so true and correct that would not in the aggregate aggregate, have or reasonably be expected to have a Material Adverse Effect in respect on MUSA;
(ii) Sections 4.4(a) and (b) shall be true and correct on the date hereof and at and as of the Company Group Closing Date as if made on and as of such dates (except for representations and warranties that are made as of a wholespecified date, which shall be true and correct only as of such specified date) with only such exceptions as would not, individually or in the aggregate, (A) result or reasonably be expected to result in the payment of additional amounts under Article II hereof in excess of $100,000 or (B) impose any other liability on Parent, Merger Sub or the Surviving Corporation; and
(iii) Section 4.12(a) shall be true and correct in all respects on the date hereof and at and as of the Closing Date as if made on and as of the date hereof.
(b) MUSA shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as "material" or "Material Adverse Effect," in which case MUSA shall have performed and complied with all of such covenants in all respects through the Closing.
(c) Since MUSA shall have delivered to Parent a certificate duly executed by an authorized officer on behalf of MUSA to the date of this Agreement, there shall not have occurred any Effect in respect effect that each of the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect conditions specified in respect of the Company Group as a whole which Sections 6.2(a) and (b) is continuing and uncuredsatisfied in all respects.
(d) Parent The Debt Financing shall have received a certificatebeen obtained by Parent and Merger Sub on the terms and conditions set forth in the Debt Financing Agreement, dated or alternative financing (sufficient, when taken together with the proceeds from the Equity Financing, to pay the Required Amounts) as provided in Section 5.2(b) shall have been obtained.
(e) The Employment Agreement shall not have been terminated and shall remain in full force and effect as of the Closing Date; provided, signed by the Chief Executive Officer however, that a termination of the Company certifying the accuracy Employment Agreement or a failure of the provisions of the foregoing clauses (a), (b) Employment Agreement to remain in full force and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated effect as of the Closing Date, signed by the Secretary Date shall not be deemed to be a failure of the Company attaching true, correct condition set forth in this Section 6.2(e) if such termination or failure to remain in full force and complete copies effect is solely a result of (i) Lourenco Goncalves being unable to perform his duties thereunder xxx xx xxx xxxxx or Disability (as defined in the Memorandum and Articles of Associations of the CompanyEmployment Agreement), certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by Lourenco Goncalves's termination thereunder "without Cause" (as xxxxxxx xx xxx Xxxxxyment Agreement) or "without Good Reason" (as defined in the Board of Directors of the Company authorizing this Employment Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and ) or (iii) a certificate commission of good standing an act by Lourenco Goncalves which would not have constituted Cause under xxx Xxxxxxxxxx Xxxeement if the word "significantly" preceded the words "adversely impact" in Section 3(b)(viii) of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Employment Agreement.
Appears in 1 contract
Samples: Merger Agreement (Metals Usa Inc)
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction, fulfillment or the waiver in Parent’s sole and absolute discretionwaiver, at or prior to the Closing, of all each of the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications Article IV, the Ancillary Documents and exceptions contained therein relating to materiality any certificate or Material Adverse Effect)other writing delivered pursuant hereto, shall be true and correct in all respects at on and as of the date of this Agreement hereof and on and as of the Closing Date with the same effect as if though made at and as of such date (except to the extent those representations and warranties that any such representation and warranty is expressly made address matters only as of a specific specified date, in which case such representation and warranty shall be true and correct at and in all respects as of such specific that specified date, the accuracy of which shall be determined as of that specified date in all respects), except, in each case, for any except where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect, other than (disregarding i) the representations and warranties of the Company contained in Section 4.01 (Organization and Qualification), Section 4.02(a) (Authority), Section 4.04 (Capitalization) and Section 4.23 (Brokers), which shall be true and correct in all qualifications respects on and exceptions contained therein relating as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects), and (ii) Section 4.05 (Subsidiaries), Section 4.07 (Undisclosed Liabilities), and Section 4.14 (Legal Proceedings), which shall be true and correct in all respects (to the extent any representation or warranty in such Sections are qualified by materiality or Material Adverse Effect) or in all material respects (to the extent any representation or warranty in such Sections are not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects);
(b) The Company shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be so true performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and correct conditions that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of are qualified by materiality, the Company Group shall have performed such agreements, covenants and conditions, as a whole.so qualified, in all respects;
(c) Since All approvals, consents and waivers that are listed in Section 4.03 or are otherwise included on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Closing;
(d) From the date of this Agreement, there shall not have occurred any Effect Material Adverse Effect, nor shall any event or events have occurred that, individually or in respect the aggregate, with or without the lapse of the Company Grouptime, that individually, or together with any other Effect since the date of this Agreement, has had or would could reasonably be expected to have result in a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncured.
(d) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.Effect;
(e) Parent The Company shall have received a certificate, dated as delivered each of the Closing Dateclosing deliverables set forth in Section 2.03(a);
(f) All Options, signed by the Secretary of warrants, rights and other instruments and agreements relating to the Company attaching true, correct and complete copies of Capital Stock shall have been (i) exercised for or converted into shares of Company Capital Stock or (ii) terminated in accordance with their terms, in each case in accordance with the Memorandum and Articles of Associations organizational documents of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this AgreementStock Plan, the Additional Agreements and other governing agreements and instruments and shall cease to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.be outstanding;
(g) Parent The Company shall have received a copy satisfied all Indebtedness and known Liabilities, and shall have delivered to holders of outstanding Indebtedness and known Liabilities, if any, by wire transfer of immediately available funds, that amount of money due and owing from the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.Company to such holder of outstanding Indebtedness or known Liabilities;
(h) If Each Stock Recipient shall have executed such party’s Signature Page to the Parent Registration Rights Agreement, and delivered executed copies of the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable same to Parent and Merger Sub;
(i) Holders holding in the aggregate no less than ninety percent (90%) of the Fully Diluted Share Number of the Company as Common Stock shall be Stock Recipients; and
(j) The officers, non-independent directors, and holders of 10% or more of the issued and outstanding Company Common Stock immediately prior to the fairness from a financial point of viewEffective Time shall have executed such party’s signature page to the applicable Lock-Up Agreement, as and delivered executed copies of the date of such opinion, of the same to Parent and Merger Consideration Shares to be paid to the Company Shareholders pursuant to this AgreementSub.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is Merger are subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, satisfaction of all the following further conditions:conditions any one or more of which may be waived in writing by Parent (in its sole and absolute discretion):
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), other than the representations and warranties set forth in Section 4.18 (Intellectual Property) and the Company Fundamental Representations, shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date Date, as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, in each case, for any failure failures of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a wholeEffect.
(c) Since The representations and warranties of the Company set forth in Section 4.18 (Intellectual Property) (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall be true and correct in all material respects at and as of the date of this Agreement, there shall not have occurred any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing Agreement and uncured.
(d) Parent shall have received a certificate, dated as of the Closing Date, signed by as if made as of such date (except to the Chief Executive Officer extent that any such representation and warranty is expressly made as of the Company certifying the accuracy a specific date, in which case such representation and warranty shall be true and correct at and as of the provisions of the foregoing clauses (asuch specific date), (b) and (c) of this Section 9.2.
(ed) Parent The Company Fundamental Representations (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall have received a certificate, dated be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date, signed by as if made as of such date (except to the Secretary of the Company attaching true, correct extent that any such representation and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified warranty is expressly made as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreementspecific date, the Additional Agreements to in which the Company is a party case such representation and the transactions contemplated hereby warranty shall be true and thereby correct at and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less such specific date), other than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islandsde minimis inaccuracies.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction, fulfillment or the waiver in Parent’s sole and absolute discretionwaiver, at or prior to the Closing, of all each of the following further conditions:
(a) The Other than the representations and warranties of the Company contained in the first two sentences of Section 3.01, Section 3.02(a), Section 3.04, Section 3.05, and Section 3.25, the representations and warranties of the Company contained in this Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall have duly performed be true and correct in all respects (in the case of any representation or complied with, warranty qualified by materiality or Material Adverse Effect) or in all material respects, all respects (in the case of its obligations and covenants hereunder required to be performed any representation or complied with (without giving effect to any warranty not qualified by materiality or similar qualifiers contained thereinMaterial Adverse Effect) by on and as of the Company at or prior to date hereof and on and as of the Closing Date.
Date with the same effect as though made at and as of such date (b) except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effectthe first two sentences of Section 3.01, Section 3.02(a), Section 3.04, Section 3.05, and Section 3.25 shall be true and correct in all respects at on and as of the date of this Agreement hereof and on and as of the Closing Date with the same effect as if though made at and as of such date (except to the extent those representations and warranties that any such representation and warranty is expressly made address matters only as of a specific specified date, in the accuracy of which case such representation and warranty shall be true and correct at and determined as of such specific datethat specified date in all respects). Solely for purposes of determining compliance with this Section 7.02(a) (and not, for the avoidance of doubt, for purposes of any claim for indemnification under Article VIII), except, the term “material” and “in each case, for any all material respects” shall mean a failure of any such representations and or warranties (disregarding all qualifications and exceptions contained therein relating of the Company referred to materiality above which result, or Material Adverse Effect) to be so true and correct that would not in the aggregate have or reasonably be expected to result, in Losses to the Parent or the Company Entities after Closing in an amount in excess of $1,000,000 in the aggregate.
(b) The Company and the Included Subsidiary shall have a Material Adverse Effect duly performed and complied in respect all material respects with all agreements, covenants and conditions required by this Agreement and each of the Company Group as a wholeAncillary Documents to be performed or complied with by it prior to or on the Closing Date.
(c) Since No Action shall have been commenced against Parent, Merger Sub, the Company or the Included Subsidiary that has not been withdrawn and which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) The approvals, consents, notices, waivers and information set forth in Section 7.02(d) of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Closing.
(e) From the date of this Agreement, there shall not have occurred any Effect Material Adverse Effect, nor shall any event or events have occurred that, individually or in respect the aggregate, with or without the lapse of the Company Grouptime, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have result in a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncured.
(d) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman IslandsEffect.
(f) Each The Company shall have delivered each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closingclosing deliverables set forth in Section 2.03(a).
(g) Parent Holders of no more than five (5) percent of the outstanding Shares as of immediately prior to the Effective Time (but immediately after the Taxable Distribution Transaction), in the aggregate, shall have received a copy exercised, or remain entitled to exercise, statutory appraisal rights pursuant to Section 262 of the Escrow Agreement, duly executed by the Seller Representative and the Escrow AgentDGCL with respect to such Shares.
(h) If The Special Committee has not rescinded or modified its approval of the Parent Taxable Distribution Transaction described in Section 3.02(c).
(i) The Taxable Distribution Transaction shall have been completed pursuant to the terms of Section 5.12 and all of the shares or other equity securities of the Excluded Subsidiary Holding Company shall have been exchanged for Shares held by Stockholders who are Accredited Investors, and the Company mutually requestshall no longer own or hold any right, Parent shall obtain an opinion from an independent investment bank title or interest in the shares or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as equity securities of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this AgreementExcluded Subsidiary Holding Company.
(j) The transactions contemplated by Section 5.13 shall have been completed.
Appears in 1 contract
Samples: Merger Agreement (Aegion Corp)
Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, of all the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its covenants, agreements and obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar “in all material respects” qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications contained therein relating to materiality or Material Adverse Effect), other than the Company Fundamental Representations, shall be true and correct as of the date of this Agreement and as of the Closing Date, as if made at and as of such date (except to the extent that any such representation and warranty is made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), other than as has not had, or would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect in respect of the Company Group.
(c) The Company Fundamental Representations (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), ) shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date Date, as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a wholeother than de minimis inaccuracies.
(cd) Since the date of this Agreement, there shall not have occurred any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this AgreementEffect, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncuredGroup.
(de) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company, in such Person’s capacity as an officer of the Company and not in such Person’s individual capacity, certifying the accuracy of the provisions of the foregoing clauses (a), (b), (c) and (cd) of this Section 9.2.
(ef) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles Company Certificate of Associations of the CompanyIncorporation, certified as of a recent date by the Companies Registry Secretary of State of the Cayman IslandsState of Delaware; (ii) the Company’s Bylaws; (iii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Stockholder Written Consent; and (iiiiv) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry Secretary of State of the Cayman IslandsState of Delaware.
(fg) Each of the Company and the Company ShareholdersSecurityholders, as applicable, shall have duly executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company ShareholderSecurityholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agentparty.
(h) If The Company shall have delivered to Parent a duly executed certificate conforming to the requirements of Sections 1.897-2(h)(1)(i) and 1.1445-2(c)(3)(i) of the United States Treasury regulations, and a notice to be delivered to the United States Internal Revenue Service as required under Section 1.897-2(h)(2) of the United States Treasury regulations, each dated no more than thirty (30) days prior to the Closing Date and in form and substance reasonable acceptable to Parent.
(i) Not more than five percent (5%) of the issued and outstanding shares of Company Common Stock shall constitute Dissenting Shares.
(j) The Company shall have delivered to Parent the financial statements required to be included in the Parent and SEC Documents.
(k) The Company shall have complied in all respects with the provisions of Section 7.8 (Application Filing for PRC Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this AgreementOwned IP).
Appears in 1 contract
Samples: Merger Agreement (Abri SPAC I, Inc.)
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the Closing is Merger are also subject to the satisfaction, satisfaction or waiver at or prior to the waiver in Parent’s sole and absolute discretion, Effective Time of all the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained set forth in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), shall be true and correct in all material respects at and as of the date of this Agreement and as of the Closing Date as if though made on and as of such date the Closing Date (except to the extent those representations and warranties that any such representation and warranty is expressly made address matters only as of a specific particular date, in which case such representation and warranty shall be true and correct at and in all respects as of such specific that date); however, except, in each case, for any unless the failure or failures of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not correct, individually or in the aggregate have aggregate, results or reasonably be expected to have would result in a Company Material Adverse Effect in respect Effect. Parent shall have received a certificate signed on behalf of the Company Group as by its Chief Executive Officer to the foregoing effect.
(b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and Parent shall have received a wholecertificate signed on behalf of the Company by its Chief Executive Officer to such effect.
(c) Since the date of this Agreement, there shall not have occurred been any Company Material Adverse Effect in respect of the Company Groupor any event, that individuallychange, or together with any other Effect since effect that would, individually or in the date of this Agreementaggregate, has had or would reasonably be expected to have a Company Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncuredEffect.
(d) Parent The Company shall have received a certificatedelivered to the Parent Support Agreements executed by each of the Company’s directors and each of the Company’s executive officers listed on Exhibit A attached hereto, dated pursuant to which each such director, executive officer has agreed, among other things, to vote all of the Company Capital Stock owned by such director or executive officer in favor of the approval of this Agreement and the transactions contemplated hereby, subject to the terms of the Support Agreement.
(e) No greater than five percent (5%) of the issued and outstanding shares of Company Capital Stock shall be Dissenting Shares as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of Foundry Group Select Fund, L.P. shall have fulfilled its obligations under the Company Foundry Commitment and the Company Shareholders, as applicable, Closing Foundry Investment shall have executed and closed with the cash proceeds thereof delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the ClosingParent.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Glowpoint, Inc.)
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction, fulfillment or the waiver in Parent’s sole and absolute discretionwaiver, at or prior to the Closing, of all each of the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by Other than the Company at or prior to Fundamental Representations, the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality any certificate or Material Adverse Effect), other writing delivered pursuant hereto shall be true and correct in all respects on and as of the Payment Date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects)with the same effect as though made at and as of the date of this Agreement and as of Payment Date , except where the Closing Date as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect Effect. The Company Fundamental Representations shall be true and correct in respect all material respects in accordance with their terms on and as of the Payment Date with the same effect as though made at and as of the Payment Date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) The Company Group as a wholeshall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date.
(c) Since The Company shall have delivered or shall be prepared to deliver at the date of this Agreement, there shall not have occurred any Effect in respect Closing each of the Company Group, closing deliverables set forth in Section 2.03(a) that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncured.
(d) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and been delivered prior to the Closing.
(gd) Parent’s certificate of incorporation and/or certificate of designation of the Parent Preferred Stock shall have received a copy been amended to authorize sufficient shares of Parent Preferred Stock to allow the implementation of the Escrow Agreement, duly executed by the Seller Representative Parent Preferred Stock Issuance and the Escrow AgentParent Preferred Stock Issuance shall have been effected.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Fat Brands, Inc)
Conditions to Obligations of Parent and Merger Sub. The obligation -------------------------------------------------- obligations of Parent and Merger Sub to consummate the Closing is Merger and the other transactions contemplated hereby shall be subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, fulfillment of all the following further conditionsconditions unless waived by Parent:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company AmeriSource set forth in Article III (which for purposes of this paragraph (a) shall be read as though none of them contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or any Material Adverse Effect), Effect or materiality qualifier) shall be true and correct in all respects at and as of the date of this Agreement on and as of the Closing Date with the same effect as if though made on and as of such date the Closing Date (except to the extent that any for such representation representations and warranty is expressly warranties made as of a specific specified date, the accuracy of which will be determined as of the specified date), except for changes permitted by Section 5.3(c) and except where the failure of the representations and warranties in which case such representation and warranty shall the aggregate to be true and correct at and as of such specific date), except, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that respects would not in the aggregate have or reasonably be expected to have a Material Adverse Effect on AmeriSource.
(b) AmeriSource shall have performed in respect all material respects each obligation and agreement and shall have complied in all material respects with each covenant to be performed and complied with by it hereunder at or prior to the Effective Time, except, in the case of breaches of Section 5.3(c), for acts and omissions of AmeriSource which, in the Company Group as aggregate, do not have a wholeMaterial Adverse Effect on AmeriSource.
(c) AmeriSource shall have furnished Parent with a certificate dated the Closing Date signed on its behalf by its Chairman, President or any Vice President to the effect that the conditions set forth in Sections 6.3(a) and (b) have been satisfied.
(d) Since the date of this Agreement, there shall not have occurred been any Effect change in respect the business, assets, liabilities, results of operations or financial condition of AmeriSource which individually or in the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or aggregate would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncured.
(d) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2on AmeriSource.
(e) Parent shall have received a certificate, dated as Each of the Closing DateEmployee Agreements shall be in full force and effect in accordance with its terms and shall not have been modified, signed amended or terminated (other than by the Secretary of the Company attaching trueParent); provided, correct and complete copies of (i) the Memorandum and Articles of Associations of the Companyhowever, certified that it is understood that this condition shall not fail to be satisfied with respect to any such person who is no longer employed by AmeriSource so long as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this AgreementAmeriSource shall not have modified, amended or terminated, granted any waiver or release under, or assigned any rights or claims under, the Additional Employee Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islandswith such former employee.
(f) Each There shall not have been a material breach of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this AmeriSource Stock Option Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Xxxxxx Sub to consummate the Closing transactions contemplated by this Agreement is subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, of all the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its covenants, agreements and obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications contained therein relating to materiality or Material Adverse Effect), other than the Company Fundamental Representations, shall be true and correct as of July 17, 2023, and as of the Closing Date, as if made at and as of such date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct at and as of such earlier date), other than as has not had, or would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect in respect of the Company.
(c) The Company Fundamental Representations (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), ) shall be true and correct in all respects at and as of the date of this Agreement July 17, 2023, and as of the Closing Date Date, as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a wholeother than de minimis inaccuracies.
(cd) Since the date of this AgreementJuly 17, 2023, there shall not have occurred any Effect in respect of the Company GroupCompany, that individually, or together with any other Effect since the date of this AgreementEffect, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncuredCompany.
(de) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company, in such Person’s capacity as an officer of the Company and not in such Person’s individual capacity, certifying the accuracy of the provisions of the foregoing clauses (a), (b), (c) and (cd) of this Section 9.2.
(ef) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Company Articles of Associations of the CompanyIncorporation, certified as of a recent date by the Companies Registry Secretary of State of the Cayman IslandsState of Nevada; (ii) the Company’s Bylaws; (iii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Stockholder Written Consent; and (iiiiv) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry Secretary of State of the Cayman IslandsState of Nevada.
(fg) Each of the Company, the Company Securityholders and each other Person (other than Parent and the Company ShareholdersSponsor), as applicable, shall have duly and irrevocably executed and delivered to Parent a copy of each Additional Agreement to which the Company, such Company Securityholders, or such Company Shareholder, other Person as applicable, is a party and that was not otherwise executed and delivered prior to party, including the Closing.
(g) Parent shall have received a copy of the Escrow AgreementCompany Support Agreements, duly executed by the Seller Representative Lock-Up Agreements and the Escrow AgentVoting Agreements to which such Persons are a Party.
(h) If The Company shall have delivered to Parent a duly executed certificate conforming to the requirements of Treasury Regulations Sections 1.897-2(h)(1)(i) and 1.1445-2(c)(3)(i) and a notice to be delivered to the United States Internal Revenue Service as required under Treasury Regulations Section 1.897-2(h)(2), each dated no more than thirty (30) days prior to the Closing Date and in form and substance reasonable acceptable to Parent.
(i) Not more than five percent (5%) of the issued and outstanding shares of Company Common Stock shall constitute Dissenting Shares.
(j) The Company shall have obtained and delivered to Parent and each Company Consent set forth on Schedule 4.8.
(k) The Company shall have delivered to Parent a resignation from the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and of each director of the Company as to the fairness from a financial point of viewlisted in Schedule 9.2(k), effective as of the date Closing Date.
(l) The Company shall have timely delivered to Parent, in accordance with Section 7.4, the financial statements required to be included in the Parent SEC Documents.
(m) The cumulative Debt for Borrowed Money of such opinion, the Company shall be less than or equal to $14,970,000.
(n) The Company shall have obtained and delivered to Parent the written approval of the Merger Consideration Shares to be paid to by the holders of a majority of the issued and outstanding common stock of the Company Shareholders pursuant not held by directors or officers of the Company.
(o) The Company shall have obtained and delivered to this AgreementParent duly and irrevocably executed Lock-Up Agreements, Company Support Agreements, and Voting Agreements from, in each case, executive officers, directors, affiliates, founders and their family members, and holders of 5% or more of the voting equity securities of the Company.
(p) The Company shall have obtained and delivered to Parent duly and irrevocably executed Lock-Up Agreements from holders of at least fifty percent (50%) of all of the issued and outstanding common stock of the Company.
(q) The Company shall have complied in all material respects with its obligations under the Pre-PIPE Convertible Note.
Appears in 1 contract
Samples: Merger Agreement (Revelstone Capital Acquisition Corp.)
Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Closing is Merger shall also be subject to the satisfaction, satisfaction or waiver by Parent at or prior to the waiver in Parent’s sole and absolute discretion, Effective Time of all the following further conditions:
(a) The representations and warranties of Company set forth in this Agreement shall have duly performed or complied with, in all material respects, all of its obligations be true and covenants hereunder required to be performed or complied with correct (without giving effect to any materiality limitation as to “materiality” or similar qualifiers contained therein) by the “Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), shall be true and correct in all respects ” set forth therein) at and as of the date of this Agreement Closing Date, as if made at and as of the Closing Date as if made as of such date time (except to the extent that any such representation and warranty is expressly made as of a specific an earlier date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, in each case, for any except where the failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have or reasonably be expected to have result in, a Company Material Adverse Effect Effect.
(b) Company shall have performed and complied with all of its covenants hereunder in respect all material respects through the Closing, except to the extent that such covenants are qualified by terms such as “material” or “Company Material Adverse Effect,” in which case Company shall have performed and complied with all of such covenants in all respects through the Company Group as a wholeClosing.
(c) Since Company shall provide customary evidence satisfactory to Parent that (i) the date of this AgreementCredit Agreement (including, there shall not have occurred any Effect in respect without limitation, all commitments set forth therein), the note(s) and each of the other loan documents have been duly cancelled or repaid in full, and Company Groupshall have satisfied and be discharged from any and all obligations and liabilities under the Credit Agreement and all documents and agreements delivered pursuant to the Credit Agreement and the Credit Agreement and all documents and agreements delivered thereunder, that individuallyas applicable, shall be terminated, (ii) all liens and security interests upon any property of Company, the Company Subsidiaries or together with any other Effect since the date of this Agreement, has had its or would reasonably be expected to have a Material Adverse Effect their affiliates granted in respect favor of the Company Group as a whole which is continuing administrative agent under the Credit Agreement shall have been released and uncuredterminated without the requirement of any further action by or on behalf of any natural or corporate person, and (iii) Parent shall have received an acknowledgment of the repayment and termination of the Credit Agreement in form and substance acceptable to Parent.
(d) Parent Company shall have received delivered to Parent a certificate, dated as of the Closing Date, signed certificate duly executed by the Company’s Chief Executive Officer or Chief Financial Officer on behalf of Company to the effect that each of the Company certifying the accuracy of the provisions of the foregoing clauses (aconditions specified in Sections 6.3(a), (b) and (c) of this Section 9.2is satisfied in all respects.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the transactions to be performed by each of them in connection with the Closing is subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, satisfaction of all the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(bi) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating that are qualified as to materiality or Material Adverse Effect), shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date as if made as of such date (except to the extent that any such representation other than representations and warranty is expressly made warranties which address matters only as of a specific particular date, in which case such representation representations and warranty warranties shall be true and correct, on and as of such particular date), with the same force and effect as if then made; and (ii) the representations and warranties of the Company contained in this Agreement that are not qualified as to materiality shall be true and correct at as of the date of this Agreement and as of the Closing Date (other than representations and warranties which address matters only as of a particular date, in which case such representations and warranties shall be true and correct, on and as of such specific particular date), exceptwith the same force and effect as if then made, in each caseall material respects. In the event that the Company shall have delivered one or more Disclosure Schedule Updates and Parent has not terminated this Agreement in accordance with Section 13.1(b), such Disclosure Schedule Update will be deemed to modify the Disclosure Schedule and the disclosures therein will be given effect but only for any failure purposes of such determining the accuracy of the Company’s representations and warranties warranties;
(disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effectb) to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole.shall have performed and complied with all of their covenants hereunder in all material respects through the Closing;
(c) Since the date Company shall have delivered to Parent a certificate executed by a senior executive officer of the Company to the effect that each of the conditions specified to the effect that each of the conditions specified in Section 8.1(a) and Section 8.1(b) have been satisfied;
(d) no action, suit, or proceeding shall be pending or, to the Knowledge of the Company, threatened before any federal or state court of competent jurisdiction or other governmental authority wherein an unfavorable injunction, judgment, order, decree, ruling or charge has been or is reasonably likely to be issued (i) preventing consummation of the transactions contemplated by this Agreement, there or (ii) causing the transactions contemplated by this Agreement to be rescinded following consummation;
(e) all required filings shall not have occurred been made pursuant to the HSR Act and Foreign Monopoly Laws and any Effect in respect applicable waiting period (and extensions thereof) under the HSR Act and Foreign Monopoly Laws shall have expired or terminated;
(f) the Shareholder Representative shall have delivered to the Escrow Agent the Escrow Agreement, duly executed by the Shareholder Representative on behalf of the Company GroupShareholders;
(g) [Intentionally Omitted].
(h) the Company, Parent or Merger Sub, as the case may be, shall have obtained financing on terms and conditions satisfactory to Parent and Merger Sub;
(i) there shall have been no change, event or development that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect in respect Effect;
(j) all payoff letters and releases relating to (i) any Seller Expenses and (ii) any Indebtedness marked with an asterisk on Section 4.17(b) of the Disclosure Schedule and releases from third parties of any and all Security Interests relating to the assets and property of any Company Group as a whole which is continuing and uncured.will have been obtained by the Company;
(dk) Parent the Company shall have received caused the agreements set forth on Section 8.1(k) of the Disclosure Schedule to have been terminated on terms and conditions reasonably satisfactory to Parent and the Company shall have delivered to the Parent documentation reasonably satisfactory to the Parent evidencing such termination;
(l) the Company shall have delivered to Parent a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of certifying as to (i) the Memorandum and Company’s Articles of Associations of the CompanyIncorporation, certified as of a recent date by the Companies Registry Secretary of the Cayman IslandsState of Texas; (ii) copies the Company’s Bylaws; (iii) the names of resolutions duly adopted by the Board of Directors officer or officers of the Company authorizing authorized to execute any and all documents, agreements and instruments contemplated herein to be executed by the Company; and (iv) the resolutions of the Company’s board of directors approving the execution of this AgreementAgreement and the consummation of the transactions contemplated hereby;
(m) all other material governmental approvals or consents, the Additional Agreements if any, required by Applicable Law, and all applicable third party consents, if any, required under any material contract to which the Company is a party and identified in Section 4.12 of the Disclosure Schedule, for the consummation of the transactions contemplated hereby and thereby and by this Agreement, shall have been received, satisfied or waived;
(n) Parent shall have obtained, no later than twenty days prior to the Closing, a commitment for a 2006 ALTA Owner’s Title Insurance Policy or other form of policy acceptable to the Parent for each parcel of real property owned by the Company Shareholder Written Consent; and its Subsidiaries and set forth on Section 8.1(n) of the Disclosure Schedule issued by a title insurance company satisfactory to Parent (iiithe “Title Company”), together with a copy of all documents referenced therein (the “Title Commitments”);
(o) at Closing, Parent shall have obtained title insurance policies from the Title Company (which may be in the form of a certificate xxxx-up of good standing a pro forma of the Title Commitments) in accordance with the Title Commitments, insuring each of the Company’s and its Subsidiaries’ fee simple title to each such parcel of real property owned by the Company and its Subsidiaries and set forth on Section 8.1(o) of the Disclosure Schedule, certified as of a recent date (not less than three (3) days before the Closing Date, subject only to Permitted Encumbrances, in such amount as Parent reasonably determines to be the value of the real property insured thereunder and include such endorsements as are reasonably required by Parent (the “Title Policies”). Parent shall pay all fees, costs and expenses with respect to the Title Commitments and Title Policies;
(p) Parent shall have obtained, no later than twenty days prior to the Closing, a survey for each parcel of real property owned by the Companies Registry Company and it Subsidiaries and set forth on Section 8.1(p) of the Cayman Islands.Disclosure Schedule in form reasonably acceptable to the Title Company and Parent (the “Surveys”). The Surveys shall not disclose any encroachment from or onto any of such real property or any portion thereof or any other survey defect which has not been cured or insured over to Parent’s reasonable satisfaction prior to the Closing; and Parent shall have paid or committed to pay all fees, costs and expenses with respect to the Surveys;
(fq) Parent shall have received Letters of Transmittal executed by each of the Company Shareholders (other than Dissenting Shareholders);
(r) Parent shall have received the Non-Compete Agreements and each such Non-Compete Agreement shall be in full force and effect;
(s) Parent shall have received the Option Cancellation Agreements and each such Option Cancellation Agreement shall be in full force and effect;
(t) Parent shall have received the Xxxxxxx Guaranties and each such Xxxxxxx Guaranty shall be in full force and effect;
(u) The aggregate number of Dissenting Shares shall total not more than 5% of the Common Shares outstanding as of the date hereof;
(v) The Requisite Shareholder Approval shall have been obtained;
(w) Each of the Company and the Company Shareholders, as applicable, Management Shareholders shall have executed and delivered the Rollover Documents to which he, she or it is to be a party; and
(x) Parent shall have received evidence satisfactory to Parent that the Canadian Reorganization shall have been consummated. Parent, for itself and on behalf of Merger Sub, may waive any condition specified in this Section 8.1 if it executes a copy of each Additional Agreement to which the Company writing so stating at or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Closing is shall be subject to the satisfaction, satisfaction (or the waiver in Parent’s sole and absolute discretionwriting by Parent to the extent permitted by applicable Law), at or prior to the Closing, of all each of the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all Each of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company (i) contained in this Agreement (disregarding all qualifications other than the representations and exceptions contained therein relating warranties in Section 4.2), without giving effect to any qualification as to materiality contained therein, shall be true and correct as of the date hereof 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 by their terms speak as of an earlier date, in which case they shall be true and correct as of such earlier date), except to the extent that the failure to be so true and correct would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect), ; and (ii) the representations and warranties set forth in Section 4.2 shall be true and correct in all respects at and respects, except for de minimis inaccuracies, as of the date of this Agreement hereof and as of the Closing Date as if though made on and as of such date the Closing Date (except to the extent that any such representation representations and warranty is expressly made warranties by their terms speak as of a specific an earlier date, in which case such representation and warranty they shall be true and correct at and in all respects, except for de minimis inaccuracies, as of such specific earlier date). Certain confidential information contained in this document, exceptmarked by [*****], has been omitted because Sportradar Holding AG (the “Company”) has determined that the information (i) is not material and (ii) would likely cause competitive harm to the Company if publicly disclosed.
(b) Each of the covenants and agreements contained in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) this Agreement to be so true and correct that would not in the aggregate have complied with or reasonably be expected to have a Material Adverse Effect in respect of performed by the Company Group and Management Aggregator at or before the Closing shall have been complied with or performed in all material respects by the Company and/or Management Aggregator, as a wholeapplicable.
(c) Since the date of this AgreementNo event, there circumstance, change or condition shall not have occurred any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this Agreement, Agreement which has had or would reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncuredEffect.
(d) Parent The Company shall have received delivered to the Parent a certificatecertificate signed by an officer of the Company, dated as of the Closing Date, signed by certifying that the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (aconditions specified in Sections 8.3(a), (b8.3(b) and (c8.3(c) of this Section 9.2have been fulfilled.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of Either (i) the Memorandum and Articles of Associations period during which any Company Equityholders can exercise statutory appraisal rights under Section 262 of the Company, certified as of a recent date by DGCL with respect to the Companies Registry Merger shall have expired and Company Equityholders holding [*****] of the Cayman Islands; Company Capital Stock entitled to exercise such appraisal rights shall have exercised such appraisal rights (to the extent such exercises shall not subsequently have been validly withdrawn or waived) or (ii) copies of resolutions duly adopted by the Board of Directors Company Equityholders holding [*****] of the Company authorizing this Agreement, Capital Stock entitled to exercise such appraisal rights shall have effectively waived such appraisal rights in accordance Section 262 of the Additional Agreements DGCL by execution of and delivery to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman IslandsConsent Agreement.
(f) Each The Company shall have delivered duly executed consents approving or consenting to the transactions contemplated hereby, in form and substance reasonable satisfactory to Parent, from each of the Company Persons set forth on Section 8.3(f) of the Disclosure Schedule, and the Company Shareholderssuch consents shall not have been amended, as applicablemodified, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company waived, terminated or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered revoked prior to the Closing.
(g) Parent The Company shall have received a copy of delivered to Parent, the Escrow Agreement, duly executed by the Seller Representative and the Escrow AgentEquityholder Representative.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is Merger are subject to the satisfaction, satisfaction or the waiver in Parent’s sole and absolute discretion, of all the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all Each representation and warranty of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Target Company contained in Article 3 of this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse EffectEffect or any similar standard or qualification), shall be true and correct in all respects as of the Effective Time, as if made at and as of the date of this Agreement and as of the Closing Date as if made as of such date time (except to the extent that any such representation and warranty or warranty, by its terms, is expressly made as of limited to a specific date, in which case such representation and or warranty shall not be true and correct at and as of such specific date), except, in each case, for any and the failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality representation or Material Adverse Effect) warranty to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect on the Target Company;
(b) The Target Company shall have performed in respect all material respects all of its agreements contained in this Agreement required to be performed at or prior to the Company Group as Effective Time, and such failure has not had or would not reasonably be expected to have a whole.Material Adverse Effect on the Target Company;
(c) Since The Target Company shall have obtained the date consent or approval of each person whose consent or approval shall be required to consummate the transactions contemplated hereby under any indenture, mortgage, evidence of indebtedness, lease or other agreement or instrument to which the Target Company is a party, except where the failure to obtain the same would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the Target Company or upon the transactions contemplated by this Agreement; and
(d) All necessary consents or authorizations from Governmental Entities which may be required in connection with the transactions contemplated hereby, shall have been received, unless the failure to receive any such consent or authorization would not have a Material Adverse Effect on the Target Company or the transactions contemplated by this Agreement, there and such consents or authorizations shall not have occurred contain any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or conditions which would reasonably be expected to have a Material Adverse Effect in respect of on the Target Company Group as a whole which is continuing and uncuredor the transactions contemplated by this Agreement.
(de) No Material Adverse Effect shall have occurred with respect to the Target Company.
(f) Parent shall have received a certificate, dated as of sufficient evidence that the Closing Date, signed fees described in Section 3.15 have been paid in full by the Chief Executive Officer of the Target Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent The Target Company shall have received a copy delivered such officer's certificates as Parent may reasonably request. The form, scope and substance of the Escrow Agreement, duly executed by the Seller Representative all legal and the Escrow Agent.
(h) If the Parent accounting matters contemplated hereby and the Company mutually request, Parent all closing documents delivered pursuant hereto shall obtain an opinion from an independent investment bank or other financial advisory firm mutually be reasonably acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this AgreementParent's counsel.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the Closing is Merger are further subject to satisfaction or waiver by Parent at or prior to the satisfaction, or the waiver in Parent’s sole and absolute discretion, Effective Time of all the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained thereini) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse EffectSection 4.2, Section 4.3(a), Section 4.3(b) and Section 4.4 shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date as if made as of such date on the Closing Date (except to the extent that any such representation representations and warranty is expressly warranties are made as of a specific date, in which case such representation representations and warranty warranties shall be true and correct as of such date) except in respect of Section 4.3(a) and Section 4.3(b), inaccuracies that would result in the payment of an additional $750,000 or less pursuant to Section 1.4(a) and Section 2.8, in the aggregate, and (ii) except as provided in Section 8.2(h), all other representations and warranties of the Company contained in Article IV shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” or words of similar import) at and as of such specific date), except, in each case, for any failure of the Closing Date as if made on the Closing Date (except to the extent such representations and warranties (disregarding all qualifications are made as of a specific date, in which case such representations and exceptions contained therein relating to materiality or Material Adverse Effect) to warranties shall be so true and correct that as of such date), except where the failure of any such representation or warranty to be true and correct has not had and would not in the aggregate have or reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect in respect of Effect;
(b) the Company Group as a whole.shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants required to be performed by, or complied with by, it under this Agreement at or prior to the Effective Time;
(c) Since the Company shall have delivered customary documents from each debt payoff recipient set forth on Section 8.2(c) of the Company Disclosure Letter, including a payoff letter (each a “Debt Payoff Letter”), evidencing the repayment in full of all Indebtedness owing to each such debt payoff recipient (and the termination of all agreements, commitments and instruments and the irrevocable release of all Liens in connection therewith);
(d) since the date of this Agreement, there shall not have occurred been any Effect in respect of the Company Group, that individuallyMaterial Adverse Effect, or together with any other Effect since event, change or effect that would, individually or in the date of this Agreementaggregate, has had or would reasonably be expected to have a Company Material Adverse Effect Effect;
(e) the Company shall have delivered to Parent and Merger Sub a certificate, signed by its chief executive officer or another senior officer on behalf of the Company, to the effect that the conditions contained in respect Sections 8.2(a), 8.2(b) and 8.2(d) have been satisfied in all respects;
(f) the Closing Date AUM shall not be less than 85% of the Base Date AUM;
(g) the Executive Employment Agreement shall be in full force and effect at the Effective Time and on the Closing Date the Executive shall be alive and employed by the Company or a Subsidiary of the Company, and shall not have been incapacitated in such a manner as would, or would reasonably be expected to, prevent or materially impair the Executive’s ability to perform his material duties on behalf of the Company Group as a whole which is continuing and uncured.its Subsidiaries; and
(dh) Parent the representations and warranties of the Company contained in Section 4.25(d) shall have received a certificate, dated be true and correct at and as of the Closing DateDate as if made on the Closing Date except for inaccuracies that do not, signed by individually or in the Chief Executive Officer aggregate, cause the failure of the Company certifying the accuracy condition set forth in clause (iv) of the provisions “Conditions to Closing” set forth on Exhibit A of the foregoing clauses Receivables Commitment Letter (a), (b) and (c) of this Section 9.2.
(e) Parent it being understood that no such failure shall be deemed to have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies occurred if any of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date such condition or inaccuracies are waived by the Companies Registry of the Cayman Islands; Receivables Purchaser, (ii) copies of resolutions duly adopted the Receivables Commitment Letter is terminated and Parent enters into a Financing Agreement with respect to any Alternative Debt Financing as contemplated by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and Section 7.9 that does not contain such condition or (iii) the Receivables Commitment Letter is terminated and Parent enters into a certificate of good standing of the CompanyFinancing Agreement with respect to any Alternative Debt Financing as contemplated by Section 7.9 that does contain such condition, certified as of a recent date (not less than three (3) days before the Closing Date) but such condition or inaccuracies are waived by the Companies Registry of the Cayman IslandsFinancing Source providing such Alternative Debt Financing).
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction, fulfillment or the waiver in Parent’s sole and absolute discretionwaiver, at or prior to the Closing, of all each of the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company Target contained in this Agreement (disregarding all qualifications Agreement, the Ancillary Documents and exceptions contained therein relating to materiality any certificate or Material Adverse Effect), other writing delivered pursuant hereto shall be true and correct in all respects at (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date of this Agreement hereof and on and as of the Closing Date with the same effect as if though made at and as of such date (except to the extent those representations and warranties that any such representation and warranty is expressly made address matters only as of a specific specified date, in the accuracy of which case such representation and warranty shall be true and correct at and determined as of such specific datethat specified date in all respects), except, .
(b) The Parent shall approve a reverse split of its common stock in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole1-for-10 reverse split.
(c) Since The Parent shall approve and file a Certificate of Designation to authorize 10,000,000 shares of Series B Preferred Shares that have a conversion ratio of 1 share of Series B Preferred converting into 100 shares of Parent common stock.
(d) The Parent shall file a Certificate of Amendment with the Secretary of State of Delaware amending the name of the Corporation as desired by the Target.
(e) The Target shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date.
(f) No Action shall have been commenced against Parent, Merger Sub or the Target, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(g) All approvals, consents and waivers that are listed on Section 3.02 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Closing.
(h) From the date of this Agreement, there shall not have occurred any Effect Material Adverse Effect, nor shall any event or events have occurred that, individually or in respect the aggregate, with or without the lapse of the Company Grouptime, that individually, or together with any other Effect since the date of this Agreement, has had or would could reasonably be expected to have result in a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncuredEffect.
(di) Parent The Target shall have received a certificate, dated as delivered each of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (aclosing deliverables set forth in Section 2.04(a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Fdctech, Inc.)
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the Closing is Merger are further subject to the satisfaction, fulfillment (or waiver by Pxxxxx and Merger Sub) at or prior to the waiver in Parent’s sole and absolute discretion, Effective Time of all the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(bi) The representations and warranties of the Company contained set forth in this Agreement Article 3 (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effectother than Section 3.1, Section 3.2(a), Section 3.2(c), Section 3.3, and Section 3.18) shall be true and correct in all respects at and (without giving effect to any qualifications as to materiality or Company Material Adverse Effect or other similar qualifications contained therein) as of the Closing Date, except for representations and warranties that relate to a specific date or time (which need only be true and correct as of this Agreement such date or time), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (ii) each representation and warranty of the Company contained in Section 3.1 (Corporate Organization), Section 3.2(c) (Capitalization), Section 3.3 (Authority; Execution and Delivery; Enforceability) and Section 3.18 (Broker’s Fees) shall be true and correct in all material respects as of the Closing Date as though made on the Closing Date, except for representations and warranties that relate to a specific date or time (which need only be true and correct in all material respects as of such date or time); and (iii) the representations and warranties of the Company set forth in Section 3.2(a) (Capitalization) shall be true and correct in all but de minimis respects as of the Closing Date as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, time.
(b) The Company shall have performed and complied in each case, for any failure of such representations all material respects with all covenants and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) agreements required to be so true and correct that would not in performed or complied with by it under this Agreement at or prior to the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a wholeClosing Date.
(c) Since the date of this Agreement, there shall not have no Company Material Adverse Effect has occurred any Effect and no event, change or effect has occurred that would, individually or in respect of the Company Groupaggregate, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Company Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncuredEffect.
(d) Parent The Company shall have received delivered to Parent a certificate, dated as the Closing Date and signed by an executive officer of the Closing DateCompany, signed by certifying to the Chief Executive Officer of effect that the Company certifying the accuracy of the provisions of the foregoing clauses (aconditions set forth in Sections 6.3(a), (b6.3(b) and (c6.3(c) of this Section 9.2have been satisfied.
(e) Parent The Company shall have received a certificatedelivered written resignation letters or resolutions of the Company effecting the removal or resignation, dated as of the Closing DateEffective Time, signed by the Secretary of such directors and officers of the Company attaching true, correct and complete copies of as requested by Parent at least two (i2) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements Business Days prior to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the The Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party FIRPTA Certificate and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually Notice in form reasonably acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this AgreementParent.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate consummate, or cause to be consummated, the Closing is Merger are subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, satisfaction of all the following further additional conditions, any one or more of which may be waived in writing by Parent and Merger Sub:
(a) The (i) Each of the representations and warranties of the Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality “Material Adverse Effect” or similar qualifiers contained materiality qualification therein) by set forth in Sections 4.1, 4.2, 4.3(a), 4.3(b), 4.4(a), 4.4(b), 4.5 and 4.24 (the “Company at or prior to Fundamental Representations”) shall be true and correct in all material respects as of the date hereof and as of the Closing Date.
, as if made anew at and as of the Closing Date, except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, and (bii) The the representations and warranties of the Company contained in this Agreement other than the Company Fundamental Representations (disregarding all qualifications and exceptions contained therein relating without giving effect to materiality or any “Material Adverse Effect), ” or similar materiality qualification therein) shall be true and correct in all respects as of the date hereof and as of the Closing Date, as if made anew at and as of the date of this Agreement Closing Date, except with respect to representations and warranties which speak as of the Closing Date as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific an earlier date, in which case such representation representations and warranty warranties shall be true and correct at and as of such specific date), exceptexcept to the extent that any inaccuracy or omission would not, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality individually or Material Adverse Effect) to be so true and correct that would not in the aggregate have or aggregate, reasonably be expected to have a Material Adverse Effect in respect Effect.
(b) Each of the covenants of the Company Group to be performed as a wholeof or prior to the Closing shall have been performed in all material respects.
(c) The Company shall have delivered to Parent a certificate signed by an officer of the Company, dated the Closing Date, certifying that the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled.
(d) Since the date of this AgreementMarch 31, 2015, there shall not have occurred any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncuredEffect.
(de) The Company shall have delivered to Parent a statement in accordance with Treasury Regulations Section 1.897-2(h) for purposes of satisfying the requirements of Treasury Regulations Section 1.1445-2(c)(3).
(f) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, Agreement duly executed by the Seller Representative Escrow Agent and the Escrow AgentHolder Representative.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfactionfulfillment, at or prior to the waiver in Parent’s sole and absolute discretionClosing, of all each of the following further conditions, any of which may be waived in writing by Parent in its sole discretion:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(bi) The representations and warranties of the Company contained in Sections 3.2 and 3.4 of this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), shall be true and correct in all material respects at and as of the date of this Agreement both when made and as of the Closing Date as if made as Date, or in the case of representations and warranties in such date (except to the extent sections that any such representation and warranty is expressly are made as of a specific specified date, in which case such representation representations and warranty warranties shall be true and correct at in all material respects as of such specified date; and (ii) all other representations and warranties of the Company contained in this Agreement or any certificate delivered pursuant hereto shall be true and correct both when made and as of such specific the Closing Date, or in the case of representations and warranties that are made as of a specified date), except, in each case, for any failure of such representations and warranties (disregarding all qualifications shall be true and exceptions contained therein relating to materiality or Material Adverse Effect) correct as of such specified date, except where the failure to be so true and correct that would (without giving effect to any limitation or qualification as to “materiality” (including the word “material,” but not the word “Material” in the aggregate have term “Material Contracts” or reasonably be expected to “Material Adverse Effect” set forth therein) do not, individually or in the aggregate, have a Material Adverse Effect Effect.
(b) The Company shall have, in all material respects, except with respect of to the Company Group as a wholecovenant in Section 5.8(f), which shall be in all respects, performed all obligations and agreements and complied with all covenants and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing.
(c) Since the date of this Agreement, there Parent shall not have occurred any Effect in respect of received from the Company Groupa certificate to the effect set forth in Sections 6.3(a) and (b), that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have signed by a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncuredduly authorized officer thereof.
(d) Parent The consents set forth in Schedule 6.3(d) shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2been obtained.
(e) Parent Holders of Shares at the Effective Time representing not more than the percentage of the outstanding Shares set forth on Schedule 6.3(e) shall have received a certificate, dated as of properly demanded appraisal rights under the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman IslandsDGCL.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Closing is subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, of all the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole.
(c) Since the date of this Agreement, there shall not have occurred any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncured.
(d) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Company Articles of Associations of the CompanyIncorporation, certified as of a recent date by the Companies Registry Secretary of State of the Cayman IslandsState of Nevada; (ii) the Company’s Bylaws; (iii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Stockholder Written Consent; and (iiiiv) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) 3 days before the Closing Date) by the Companies Registry Secretary of State of the Cayman IslandsState of Nevada.
(f) Each of the Company and the Company ShareholdersStockholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company ShareholderStockholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) The Company shall have delivered to Parent a duly executed certificate conforming to the requirements of Sections 1.897-2(h)(1)(i) and 1.1445-2(c)(3)(i) of the United States Treasury regulations, and a notice to be delivered to the United States Internal Revenue Service as required under Section 1.897-2(h)(2) of the United States Treasury regulations, each dated no more than thirty (30) days prior to the Closing Date and in form and substance reasonable acceptable to Parent.
(h) At least three (3) of the Company’s officers comprising the senior management of the Company shall be United States residents.
(i) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(hj) If the Parent and the Company mutually request, Parent shall obtain have obtained an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders Stockholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction, fulfillment or the waiver in Parent’s sole and absolute discretionwaiver, at or prior to the Closing, of all each of the following further conditions:
(a) The Other than the representations and warranties of the Company contained in Section 3.01, Section 3.02(a) and Section 3.04, the representations and warranties of the Company contained in this Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall have duly performed be true and correct in all respects (in the case of any representation or complied with, warranty qualified by materiality or Material Adverse Effect) or in all material respects, all respects (in the case of its obligations and covenants hereunder required to be performed any representation or complied with (without giving effect to any warranty not qualified by materiality or similar qualifiers contained thereinMaterial Adverse Effect) by on and as of the Company at or prior to date hereof and on and as of the Closing Date.
Date with the same effect as though made at and as of such date (b) except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of the Company contained in this Agreement (disregarding all qualifications Section 3.01, Section 3.02(a) and exceptions contained therein relating to materiality or Material Adverse Effect), Section 3.04 shall be true and correct in all respects at on and as of the date of this Agreement hereof and on and as of the Closing Date with the same effect as if though made at and as of such date (except to the extent those representations and warranties that any such representation and warranty is expressly made address matters only as of a specific specified date, in the accuracy of which case such representation and warranty shall be true and correct at and determined as of such specific datethat specified date in all respects);
(b) The Company shall have duly performed and complied in all material respects with all agreements, except, in covenants and conditions required by this Agreement and each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) the Ancillary Documents to be so true and correct that would not in performed or complied with by it prior to or on the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole.Closing Date;
(c) Since The Majority Shareholder shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date;
(d) No Action shall have been commenced against Parent, Merger Sub or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby;
(e) From the date of this Agreement, there shall not have occurred any Effect Material Adverse Effect, nor shall any event or events have occurred that, individually or in respect the aggregate, with or without the lapse of the Company Grouptime, that individually, or together with any other Effect since the date of this Agreement, has had or would could reasonably be expected to have result in a Material Adverse Effect Effect;
(f) If, and only if, all other conditions as set forth in respect this Section 8.02 have been satisfied, immediately prior to the Closing, the Company shall make a repayment of the Indebtedness to AgeX in the amount of $250,000 (the “AgeX Repayment”). Concurrently with this AgeX Repayment, AgeX shall convert any and all outstanding Indebtedness owed by the Company Group as a whole which is continuing and uncured.
(d) Parent shall have received a certificate, dated to AgeX as of the Closing DateDate (including all principal and accrued interest) into a number of Shares (the “AgeX Loan Shares”) (such conversion is referred to as the “AgeX Loan Conversion”) at a conversion price of $0.0541 per share. Upon such conversion, signed AgeX shall execute and deliver to Parent a statement, confirming that all outstanding Indebtedness owed by the Chief Executive Officer Company to AgeX has been cancelled, all obligations thereunder have been paid in full, and all liens, if any, securing the Company’s obligations thereunder have been released (the “AgeX Loan Payoff Statement”). The Company Charter Document shall be amended, if applicable, to increase the authorized number of Shares of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of to an amount sufficient to permit the Company attaching true, correct and complete copies of (i) to issue the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.AgeX Loan Shares;
(g) Parent The Majority Shareholder shall have received a copy of settled all outstanding legal bills owed to Thompson, Welch, Sxxxxx & Gxxxxxx LLP, including those that are incurred in connection with the Escrow transactions contemplated by this Agreement, duly executed by the Seller Representative and the Escrow Agent.;
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid All documents provided to the Company Shareholders by Mor & Gold, the Israeli law firm handling the dissolution of the Israeli Sub, shall have been signed and returned to Mor & Gold, and Mor & Gold shall have confirmed that the dissolution process has commenced (the “Dissolution Commencement Confirmation”). For the avoidance of doubt, the Company shall not be obligated to complete the dissolution of the Israeli Sub before the Closing if a tax obligation to the State of Israel is required to be discharged as a condition to the dissolution;
(i) A termination has been executed by and among AgeX, Lineage and the Company, terminating any service and cost sharing agreements among AgeX, Lineage and the Company, including but not limited to, that certain LifeMap Services Agreement entered into on November 8, 2017 by and among the Company, Lineage and AgeX (the “Services Agreement”), and discharging and releasing the Company from any past or future obligations thereunder, including but not limited to, any fees that have incurred but not been paid under the Services Agreement (the “Services Termination Agreement”); and
(j) The Company shall have delivered each of the closing deliverables set forth in Section 2.03(a); provided that the closing deliverable set forth under Section 2.03(a)(xii) may be delivered by the Majority Shareholder pursuant to this AgreementSection 6.04 hereof.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the Closing is Merger are subject to the satisfaction, or waiver by Parent, on or prior to, but in any event as of, the waiver in Parent’s sole and absolute discretionClosing Date, of all the following further additional conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(bi) The representations representation and warranties warranty of the Company contained in Section 3.10(c) of this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date as if though made on the Closing Date and (ii) all other representations and warranties of the Company set forth in ARTICLE III of this Agreement, in each case made as if none of such date (except representations and warranties contained any qualifications or limitations as to the extent that any such representation “materiality” or Material Adverse Effect, shall be true and warranty is expressly made correct, in each case as of a specific the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (other than representations and warranties that by their terms speak as of another date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, in each case, for any except where the failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not as so made, individually or in the aggregate aggregate, does not have or and is not reasonably be expected to have result in a Material Adverse Effect on the Company; provided, however, that, notwithstanding the foregoing, the representations and warranties contained in respect Section 3.3 (other than the last sentence of Section 3.3(c)), Section 3.4 and Section 3.5 shall be true and correct in all material respects. Parent shall have received a certificate of the chief executive officer or the chief financial officer of the Company Group as to such effect.
(b) The Company shall have performed or complied in all material respects with all agreements and covenants required to be performed by it under this Agreement at or prior to the Closing Date, and Parent shall have received a wholecertificate of the chief executive officer or the chief financial officer of the Company to such effect.
(c) Since the date of this Agreement, there shall not have occurred any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncured.
(d) Parent The Preferred Stock Conversion Right shall have received a certificatebeen exercised, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent Preferred Stock Conversion shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the been consummated and no Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman IslandsSeries A Preferred Stock shall be outstanding.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction, fulfillment or the waiver in Parent’s sole and absolute discretionwaiver, at or prior to the Closing, of all each of the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement (disregarding all qualifications Agreement, the other Transaction Documents and exceptions contained therein relating to materiality or Material Adverse Effect)any certificate delivered pursuant hereto, as applicable, shall be true and correct in all respects on and as of the date hereof and as of the Closing Date, with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
(b) The representations and warranties of each Shareholder contained in the applicable Shareholder Support Agreement shall be true and correct in all respects as of the date of this Agreement and as if made on and as of the Closing Date as if made as of such date (except to the extent that any such representation and warranty is expressly made as of a specific another specified date, in which case such representation and warranty shall be true and correct at and as of such specific date), except, in each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) to be so true and correct that would not in the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole.
(c) Since The Company shall have performed and complied in all respects with all agreements, covenants and conditions required by this Agreement and each of the date other Transaction Documents to be performed or complied with by the Company prior to or as of this Agreementthe Closing Date.
(d) Each Shareholder shall have performed or complied in all respects with the obligations required to be performed or complied with by such Shareholder under the applicable Shareholder Support Agreement at or prior to the Effective Time.
(e) From December 31, 2018 until the Closing Date, there shall not have occurred any Effect Material Adverse Effect, nor shall any event or events have occurred that, individually or in respect the aggregate, with or without the lapse of the Company Grouptime, that individually, or together with any other Effect since the date of this Agreement, has had or would could reasonably be expected to have result in a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncuredEffect.
(df) Parent At the Closing, the Company shall have received a certificatedelivered or caused to be delivered all of the agreements, dated as instruments and documents required to be delivered to Parent pursuant to Section 2.08(c).
(g) As of the Closing Date, signed by no Shareholders entitled to vote on the Chief Executive Officer Merger shall have provided notice of exercise of their dissenter’s rights under Chapter 23 of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow AgentTennessee Business Corporation Act.
(h) If The Shareholder Support Agreements and the Requisite Shareholder Approval shall be in full force and effect.
(i) The Company shall have placed the Company’s Trade Secrets in escrow with a mutually agreed upon escrow company and shall have provided Parent or its legal counsel with full access to the Company’s Trade Secrets and other Company Intellectual Property, including the Company Intellectual Property set forth in the Schedules and Exhibits, and the Parent’s legal counsel shall have conducted and delivered a freedom to operate analysis of certain of the Company’s Trade Secrets and other Company Intellectual Property to the Parent, and the Parent shall have determined, in its sole and absolute discretion, to consummate the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (OncoCyte Corp)
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate the Closing is transactions contemplated by this Agreement shall be subject to the satisfaction, fulfillment or the waiver in Parent’s sole and absolute discretionwaiver, at or prior to the Closing, of all each of the following further conditions:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by Other than the Company at or prior to Fundamental Representations, the Closing Date.
(b) The representations and warranties of the Company contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all material respects on and as of the Signing Date and on and as of the Closing Date with the same effect as though made at and as of such date (disregarding except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all qualifications and exceptions contained therein relating to materiality or Material Adverse Effectrespects), . The Company Fundamental Representations shall be true and correct in all respects at on and as of the date of this Agreement Signing Date and on and as of the Closing Date with the same effect as if though made at and as of such date (except to the extent those representations and warranties that any such representation and warranty is expressly made address matters only as of a specific specified date, in the accuracy of which case such representation and warranty shall be true and correct at and determined as of such specific datethat specified date in all respects).
(b) The Company shall have duly performed and complied in all material respects with all agreements, except, in covenants and conditions required by this Agreement and each case, for any failure of such representations and warranties (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) the Ancillary Documents to be so true and correct that would not in performed or complied with by it prior to or on the aggregate have or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a wholeClosing Date.
(c) Since No Action shall have been commenced against Parent, Merger Sub, the date Company or any Company Subsidiary, that would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All approvals, consents and waivers that are listed on Section 3.03 of this Agreementthe Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Parent at or prior to the Closing.
(e) From the Signing Date, there shall not have occurred any Effect Material Adverse Effect, nor shall any event or events have occurred that, individually or in respect the aggregate, with or without the lapse of the Company Grouptime, that individually, or together with any other Effect since the date of this Agreement, has had or would could reasonably be expected to have result in a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncured.
(d) Parent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman IslandsEffect.
(f) Each The Company shall have delivered each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closingclosing deliverables set forth in Section 2.04(a).
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Isun, Inc.)
Conditions to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate effect the Merger and the other transactions contemplated herein are subject to satisfaction of the following conditions on or before the Closing is subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, of all the following further conditionsDate:
(a) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at or prior to the Closing Date.
(b) The representations and warranties of the Company contained set forth in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), Article III hereof shall be true and correct in all material respects at and as of the date of this Agreement and as of the Closing Date as if made as of such date (except for those representations and warranties which are qualified by “materiality”, “Material Adverse Effect” or words to the extent that any such representation and warranty is expressly made as of a specific datesimilar effect, in which case each such representation and warranty shall be true and correct in all respects) at and as of the Closing Date as though then made and as though the Closing Date had been substituted for the date of this Agreement throughout such specific date)representations and warranties, exceptother than those representations and warranties that address matters as of particular dates, in each case, for any failure of which case such representations and warranties shall be true and correct in all material respects as of such particular dates (disregarding all qualifications except for those representations and exceptions contained therein relating to materiality or warranties which are qualified by “materiality”, “Material Adverse Effect) ” or words to similar effect, in which case each such representation and warranty shall be so true and correct that would not in the aggregate all respects);
(b) The Company shall have or reasonably be expected to have a Material Adverse Effect performed in respect all material respects all of the Company Group as a whole.covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;
(c) Since The applicable waiting periods, if any, under the HSR Act shall have expired or been terminated without any conditions;
(d) No judgment, decree or order shall be in effect by any Governmental Authority, or threatened in writing by any Governmental Authority, that would prevent the consummation of the Closing or that would impose limitations on such Closing and/or the ability of any party hereto to perform its obligations hereunder or operate the business of the Company or the Company Subsidiaries;
(e) This Agreement and the Merger and the other agreements contemplated hereby shall have been approved and adopted by the Requisite Shareholder Approval in accordance with the terms of the California Code, the articles of incorporation of the Company and the by-laws of the Company;
(f) The consents, approvals, waivers and notices set forth on Section 8.01(f) of the Company Disclosure Schedule shall have been obtained and correct and complete copies of such consents, approvals, waivers and notices shall have been delivered to Parent;
(g) From the date of this Agreement, there shall not have occurred any Effect in respect of the Company Group, that individually, or together with any other Effect since the date of this Agreement, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole which is continuing and uncured.Effect;
(dh) Parent shall have received the following documentation:
(i) a certificate, dated as certificate of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iiiA) a certificate of good standing of the Company, certified as of a recent date dated not more than ten (not less than three (310) days before Business Days prior to the Closing Date, from the Secretary of State of the State of California, (B) a copy of the current by-laws (or equivalent governing documents) of the Company, (C) a copy of the articles of incorporation, certified by the Companies Registry Secretary of State of the Cayman Islands.
State of California, (fD) Each a true, correct and complete copy of the resolutions of the Board of Directors of the Company authorizing the execution and delivery of this Agreement and the other Transaction Documents to which the Company Shareholdersis a party and the consummation of the transactions contemplated thereby and (E) a correct and complete list of Holders that have not voted in favor of the Merger as of the Closing;
(ii) a certificate, dated the Closing Date, executed by an authorized officer of the Company certifying that the conditions precedent set forth in Section 8.01(a), (b), (e) and (g) have been satisfied;
(iii) all Letters of Transmittal received by the Representative or the Company as applicableof the Closing;
(iv) the Payoff Letters;
(v) the Company shall deliver to Parent properly executed statements in a form reasonably acceptable to the Buyer for purposes of satisfying the Buyer’s obligations under Treasury Regulations Section 1.1445-2(c)(3);
(vi) evidence of termination of each of (A) the Amended and Restated Registration Agreement of the Company, dated as of December 23, 2010, (B) the Shareholders Agreement and (C) the Management Services Agreement, dated as of June 26, 2007, by and between Water Street Healthcare Management, L.P. and the Company;
(vii) the Option Plan Amendment;
(viii) an amendment, in the form satisfactory to Parent, to the employment or letter agreement between the Company and each of Xxxxxx Xxxx, Xxxxxx Xxxxx and Xxxxx Xxxxxx; and
(ix) written resignations of all members of the Board of Directors of the Company;
(i) the board of directors of the Company (or, if appropriate, a committee thereof) shall have adopted appropriate resolutions and taken all other actions necessary to provide that, effective as of the Closing, the Precision Dynamics Corporation Cash Option Profit Sharing Plan will in all cases exclude participation by any employee of Parent (or a Subsidiary of Parent) other than an employee of the Company or any of the Company Subsidiaries;
(j) The following Holders shall have voted in favor of the Merger and shall have delivered an executed Letter of Transmittal with respect to their Company Capital Stock to the Company: Xxxxxx Xxxxxx, Xxxxxx Xxxxxxx, the Representative (in its capacity as a Holder), all other holders of Preferred Stock and all holders of Senior Stock (other than The Xxxx Press Living Trust dated 3/2/06);
(k) The Representative and the Escrow Agent shall have executed and delivered to Parent a copy of each Additional the Escrow Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior Parent; and
(l) Prior to the Closing.
(g) Parent Effective Time, the Certificate of Merger shall have received a copy been accepted for filing with the Secretary of State of the Escrow AgreementState of California (and evidence thereof provided to Parent). Any condition in this Section 8.01 may be waived by Parent or Merger Sub; provided, duly however, that no such waiver will be effective against Parent unless it is set forth in a writing executed by the Seller Representative and the Escrow AgentParent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Brady Corp)
Conditions to Obligations of Parent and Merger Sub. The obligation obligations of Parent and Merger Sub to consummate effect the Closing is Merger are subject to the satisfactionsatisfaction (or waiver, or the waiver in Parent’s sole and absolute discretion, of all the following further conditions:
(aif permissible under applicable law) The Company shall have duly performed or complied with, in all material respects, all of its obligations and covenants hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company at on or prior to the Closing Date.Date of the following conditions: sd-625790
(ba) The the representations and warranties of the Company contained in this Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect), shall be true and correct accurate in all respects at as of the Closing, with the same force and effect as if made as of the Closing (except to the extent any such representation or warranty speaks as of the date of this Agreement and as of the Closing Date as if made as of such date (except to the extent that or any such representation and warranty is expressly made as of a other specific date, in which case such representation and or warranty shall be true and correct at and have been accurate in all respects as of such specific date), exceptexcept that any inaccuracies in such representations and warranties will be disregarded for purposes of this Section 6.1(a) if such inaccuracies (considered collectively) do not have a Company Material Adverse Effect as of the Closing, in each caseit being understood that, for any failure purposes of determining the accuracy of such representations and warranties (disregarding warranties, all qualifications and exceptions contained therein relating to materiality or “Company Material Adverse Effect” and other qualifications using the terms “in any material respect” or “in all material respects” in such representations and warranties will be disregarded;
(b) the Company shall have performed in all material respects all agreements and covenants required to be so true performed by it under this Agreement at or prior to the Closing, including but not limited to obtaining any required governmental consents, permits, regulatory approvals, waivers, and correct that would not in the aggregate have making any required filings or reasonably be expected to have a Material Adverse Effect in respect of the Company Group as a whole.completing any required registrations with governmental authorities;
(c) Since the Merger shall have been approved by the Requisite Shareholders;
(d) the Company Required Governmental Approvals and the Parent Required Governmental Approvals shall have been obtained, and no such Company Required Governmental Approval or Parent Required Governmental Approval shall have imposed a Burdensome Condition not otherwise agreed to or approved by Parent;
(e) the Shareholders’ Representative and the Escrow Agent shall have executed the Escrow Agreement;
(f) since the date of this Agreement, there shall have been no occurrences that, individually or in the aggregate, have had a Company Material Adverse Effect;
(g) there shall not have occurred be pending any Effect in respect action by a governmental authority seeking to restrain, prohibit or enjoin the consummation of the Company GroupMerger;
(h) the waiting period under the HSR Act, that individuallyif applicable, shall have expired or together with any been terminated; and
(i) no injunction or other Effect order preventing the Merger shall have been issued since the date of this Agreement, has had Agreement by any United States federal or would reasonably be expected to have a Material Adverse Effect state court of competent jurisdiction and shall remain in respect of effect; and no United States federal or state law that makes the Company Group as a whole which is continuing and uncured.
(d) Parent Merger illegal shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company certifying the accuracy of the provisions of the foregoing clauses (a), (b) and (c) of this Section 9.2.
(e) Parent shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete copies of (i) the Memorandum and Articles of Associations of the Company, certified as of a recent date by the Companies Registry of the Cayman Islands; (ii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the Company Shareholder Written Consent; and (iii) a certificate of good standing of the Company, certified as of a recent date (not less than three (3) days before the Closing Date) by the Companies Registry of the Cayman Islands.
(f) Each of the Company and the Company Shareholders, as applicable, shall have executed and delivered to Parent a copy of each Additional Agreement to which the Company or such Company Shareholder, as applicable, is a party and that was not otherwise executed and delivered prior to the Closing.
(g) Parent shall have received a copy of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(h) If the Parent and the Company mutually request, Parent shall obtain an opinion from an independent investment bank or other financial advisory firm mutually acceptable to Parent and the Company as to the fairness from a financial point of view, as of been enacted since the date of such opinion, of the Merger Consideration Shares to be paid to the Company Shareholders pursuant to this AgreementAgreement and shall remain in effect.
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Samples: Merger Agreement (Avista Corp)