Conditions to Obligations of Parent and Purchaser to Effect the Merger. The obligations of Parent and Purchaser to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions, any of which may be waived by Parent and Purchaser in their sole discretion: (a) The Company shall have performed in all material respects each of its agreements and covenants contained in this Agreement required to be performed on or prior to the Closing Date. (b) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct as of such certain date) except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided that, notwithstanding the foregoing, (i) the representations and warranties set forth in Section 3.1 (Organization, Standing, and Corporate Power; Subsidiaries), Section 3.2 (Corporate Authorization), Section 3.18 (Voting Requirements), Section 3.20 (Brokers) and Section 3.22(l) and (n) (certain FDA and Related Matters) shall be true and correct in all material respects as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct in all material respects as of such certain date) and (ii) the representations and warranties set forth in Section 3.4 (Capital Structure) shall be true and correct in all respects as of the Closing Date (other than de minimis failures to be true and correct in all respects). (c) Since the date of this Agreement, there shall not have occurred or exist any event, change, occurrence, circumstance, effect or condition which (individually or in the aggregate) has had, or would reasonably be expected to have, a Material Adverse Effect. (d) Parent and Purchaser shall have received a certificate with confirming satisfaction of the conditions set forth in Section 7.3(a), Section 7.3(b) and Section 7.3(c) signed on behalf of the Company by an authorized senior executive officer of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Akorn Inc), Merger Agreement (Hi Tech Pharmacal Co Inc)
Conditions to Obligations of Parent and Purchaser to Effect the Merger. The obligations of Parent and Purchaser to effect the Merger shall be are further subject to the fulfillment satisfaction or waiver at or prior to the Closing Date Effective Time of the following conditions, any of which may be waived by Parent and Purchaser in their sole discretion:
(ai) The representations and warranties of the Company set forth in Sections 3.2, 3.3 and 3.5(a) and all statements set forth in Section 3.26 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Sections 3.2, 3.3 and 3.5(a) and the statements set forth in Section 3.26) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect;
(b) The Company shall have performed in all material respects each of its agreements and covenants contained in obligations under this Agreement required to be performed on by it at or prior to the Closing Date.
(b) Each of Effective Time pursuant to the representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct as of such certain date) except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided that, notwithstanding the foregoing, (i) the representations and warranties set forth in Section 3.1 (Organization, Standing, and Corporate Power; Subsidiaries), Section 3.2 (Corporate Authorization), Section 3.18 (Voting Requirements), Section 3.20 (Brokers) and Section 3.22(l) and (n) (certain FDA and Related Matters) shall be true and correct in all material respects as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct in all material respects as of such certain date) and (ii) the representations and warranties set forth in Section 3.4 (Capital Structure) shall be true and correct in all respects as of the Closing Date (other than de minimis failures to be true and correct in all respects).
(c) Since the date terms of this Agreement, there shall not have occurred or exist any event, change, occurrence, circumstance, effect or condition which (individually or in the aggregate) has had, or would reasonably be expected to have, a Material Adverse Effect.
(d) and Parent and Purchaser shall have received a certificate with confirming satisfaction of the conditions set forth in Section 7.3(a), Section 7.3(b) and Section 7.3(c) signed on behalf of the Company by an authorized senior executive officer the Chief Executive Officer or Chief Financial Officer to such effect;
(c) There shall not be pending any suit, action or proceeding by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent, Purchaser or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement;
(d) Parent shall have received the opinion of Xxxxxxxx & Knight, LLP, counsel to Parent, in form and substance reasonably satisfactory to Parent, on the date on which the Form S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Purchaser and the Company., all of which are consistent with the state of facts existing as of the date on which the Form S-4 is filed or the Effective Time, as applicable, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company, Parent and Purchaser will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), Xxxxxxxx & Xxxxxx, LLP,shall have received and may rely upon the affiliate letters, certificates and representations referred to in Section 5.14(d);
(e) The number of Dissenting Shares shall not exceed 10% of the outstanding shares of Company Common Stock; and
Appears in 1 contract
Conditions to Obligations of Parent and Purchaser to Effect the Merger. The obligations of Parent and Purchaser to effect the Merger shall be are further subject to the fulfillment satisfaction or waiver at or prior to the Closing Date Effective Time of the following conditions, any of which may be waived by Parent and Purchaser in their sole discretion:
(ai) The representations and warranties of the Company set forth in Sections 3.2, 3.3 and 3.5(a) and all statements set forth in Section 3.26 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Sections 3.2, 3.3 and 3.5(a) and the statements set forth in Section 3.26) shall be true and correct (without giving effect to any limitation as to "materiality" or "Material Adverse Effect" set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to "materiality" or "Material Adverse Effect" set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect;
(b) The Company shall have performed in all material respects each of its agreements and covenants contained in obligations under this Agreement required to be performed on by it at or prior to the Closing Date.
(b) Each of Effective Time pursuant to the representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct as of such certain date) except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided that, notwithstanding the foregoing, (i) the representations and warranties set forth in Section 3.1 (Organization, Standing, and Corporate Power; Subsidiaries), Section 3.2 (Corporate Authorization), Section 3.18 (Voting Requirements), Section 3.20 (Brokers) and Section 3.22(l) and (n) (certain FDA and Related Matters) shall be true and correct in all material respects as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct in all material respects as of such certain date) and (ii) the representations and warranties set forth in Section 3.4 (Capital Structure) shall be true and correct in all respects as of the Closing Date (other than de minimis failures to be true and correct in all respects).
(c) Since the date terms of this Agreement, there shall not have occurred or exist any event, change, occurrence, circumstance, effect or condition which (individually or in the aggregate) has had, or would reasonably be expected to have, a Material Adverse Effect.
(d) and Parent and Purchaser shall have received a certificate with confirming satisfaction of the conditions set forth in Section 7.3(a), Section 7.3(b) and Section 7.3(c) signed on behalf of the Company by an the Chief Executive Officer or Chief Financial Officer to such effect;
(c) There shall not be pending any suit, action or proceeding by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent, Purchaser or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement;
(d) Parent shall have received the opinion of Thompson & Knight, LLP, counsel to Parent, in form and substance reasoxxxxx xxtisxxxxxxy to Parent, on the date on which the S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Purchaser and the Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed or the Effective Time, as applicable, to the effect that (i) the Integrated Transaction will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a "party to the reorganization" within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), Thompson & Knight, LLP, shall have received and may rely upon the affixxxxx xxtters, certificates and representations referred to in Section 5.13(d);
(e) The number of Dissenting Shares shall not exceed 10% of the outstanding shares of Company Common Stock;
(f) All material consents and approvals of any Person that the Company or Parent or any of their respective Subsidiaries is required to obtain in connection with the consummation of the Merger, including consents and approvals from parties to loans, contracts, leases or other agreements, shall have been obtained, and a copy of each such consent and approval shall have been provided to Parent at or prior to the Closing, except for such consents and approvals the failure of which to be obtained individually or in the aggregate would not be reasonably likely to have or result in a Material Adverse Effect on the Company or Parent, as applicable;
(g) The Company must have delivered to its counsel, Parent and Parent's counsel a certificate signed on behalf of the Company by a duly authorized senior executive officer of the Company certifying the representations set forth in Section 3.26 and as otherwise reasonably requested by the Company's or Parent's tax counsel; and
(h) During the period from the date of execution of this Agreement until the Effective Time, there shall not have occurred a Material Adverse Effect on the Company.
Appears in 1 contract
Samples: Merger Agreement (KCS Energy Inc)
Conditions to Obligations of Parent and Purchaser to Effect the Merger. The obligations of Parent and Purchaser to effect the Merger shall be are further subject to the fulfillment satisfaction or waiver at or prior to the Closing Date Effective Time of the following conditions, any of which may be waived by Parent and Purchaser in their sole discretion:
(a) (i) The representations and warranties of the Company set forth in Sections 3.2, 3.3 and 3.5(a) and all statements set forth in Section 3.26 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Sections 3.2, 3.3 and 3.5(a) and the statements set forth in Section 3.26) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect;
(b) The Company shall have performed in all material respects each of its agreements and covenants contained in obligations under this Agreement required to be performed on by it at or prior to the Closing Date.
(b) Each of Effective Time pursuant to the representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct as of such certain date) except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided that, notwithstanding the foregoing, (i) the representations and warranties set forth in Section 3.1 (Organization, Standing, and Corporate Power; Subsidiaries), Section 3.2 (Corporate Authorization), Section 3.18 (Voting Requirements), Section 3.20 (Brokers) and Section 3.22(l) and (n) (certain FDA and Related Matters) shall be true and correct in all material respects as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct in all material respects as of such certain date) and (ii) the representations and warranties set forth in Section 3.4 (Capital Structure) shall be true and correct in all respects as of the Closing Date (other than de minimis failures to be true and correct in all respects).
(c) Since the date terms of this Agreement, there shall not have occurred or exist any event, change, occurrence, circumstance, effect or condition which (individually or in the aggregate) has had, or would reasonably be expected to have, a Material Adverse Effect.
(d) and Parent and Purchaser shall have received a certificate with confirming satisfaction of the conditions set forth in Section 7.3(a), Section 7.3(b) and Section 7.3(c) signed on behalf of the Company by an the Chief Executive Officer or Chief Financial Officer to such effect;
(c) There shall not be pending any suit, action or proceeding by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent, Purchaser or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement;
(d) Parent shall have received the opinion of Txxxxxxx & Kxxxxx, LLP, counsel to Parent, in form and substance reasonably satisfactory to Parent, on the date on which the Form S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Purchaser and the Company, all of which are consistent with the state of facts existing as of the date on which the Form S-4 is filed or the Effective Time, as applicable, to the effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company, Parent and Purchaser will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), Txxxxxxx & Knight, LLP,shall have received and may rely upon the affiliate letters, certificates and representations referred to in Section 5.14(d);
(e) The number of Dissenting Shares shall not exceed 10% of the outstanding shares of Company Common Stock; and
(f) All material consents and approvals of any Person that the Company or any of its Subsidiaries are required to obtain in connection with the consummation of the Merger, including consents and approvals from parties to loans, contracts, leases or other agreements, shall have been obtained, and a copy of each such consent and approval shall have been provided to Parent at or prior to the Closing, except for such consents and approvals the failure of which to be obtained individually or in the aggregate would not be reasonably likely to have or result in a Material Adverse Effect on the Company.
(g) The Company must have delivered to its counsel, Parent and Parent’s counsel a certificate signed on behalf of the Company by a duly authorized senior executive officer of the Company certifying the representations set forth in Section 3.26 and as otherwise reasonably requested by the Company’s tax counsel.
Appears in 1 contract
Conditions to Obligations of Parent and Purchaser to Effect the Merger. The obligations of Parent and Purchaser to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions, any of which may be waived by Parent and Purchaser in their sole discretion:
(a) The Each of the Company and the Principal Stockholders shall have performed or complied with in all material respects each of its agreements and covenants contained in this Agreement and the Principal Stockholders Agreement, respectively, required to be performed on or complied with at or prior to the Closing Date.
; the representations and warranties of the Company and each of the Principal Stockholders contained in this Agreement and the Principal Stockholders Agreement, respectively, qualified as to materiality shall be true in all respects, and those not so qualified shall be true in all respects material to the Company's business, in each case when made and, except for the Agreed Exceptions, on and as of the Closing Date with the same force and effect as if made on and as of such date, except that those representations and warranties made as of a specific date shall be true in all respects (bor all respects material to the Company's business, as the case may be) Each on and as of such date; and Parent shall have received certificates signed by an authorized officer of the Company and by the Stockholders' Representative on behalf of each of the Principal Stockholders to the foregoing effect. "AGREED EXCEPTIONS" shall mean those exceptions to the representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct as of such certain date) except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein) would not, individually or are specifically identified in the aggregateaforementioned Company officer certificate and which relate solely to circumstances arising after the date hereof affecting economic or physical conditions in Southern California in general (such as, reasonably be expected but not limited to, earthquakes, widespread floods and fires, storms, riots, acts of war, reductions in population, workforce or general income levels and other events or developments affecting the Southern California economy as a whole) but excluding third-party conduct or actions aimed at or relating to have a Material Adverse Effect; provided thatthe grocery market in Southern California in general (such as, notwithstanding the foregoingbut not limited to, (i) the representations labor actions, class litigation, boycotts and warranties set forth in Section 3.1 (Organization, Standing, and Corporate Power; Subsidiaries), Section 3.2 (Corporate Authorization), Section 3.18 (Voting Requirements), Section 3.20 (Brokers) and Section 3.22(l) and (n) (certain FDA and Related Matters) shall be true and correct in all material respects as actions of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct in all material respects as of such certain date) and (ii) the representations and warranties set forth in Section 3.4 (Capital Structure) shall be true and correct in all respects as of the Closing Date (other than de minimis failures to be true and correct in all respectscompetitors).
(c) Since the date of this Agreement, there shall not have occurred or exist any event, change, occurrence, circumstance, effect or condition which (individually or in the aggregate) has had, or would reasonably be expected to have, a Material Adverse Effect.
(d) Parent and Purchaser shall have received a certificate with confirming satisfaction of the conditions set forth in Section 7.3(a), Section 7.3(b) and Section 7.3(c) signed on behalf of the Company by an authorized senior executive officer of the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Quality Food Centers Inc)
Conditions to Obligations of Parent and Purchaser to Effect the Merger. The obligations of Parent and Purchaser to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date Effective Time of the following additional conditions, any of which may be waived by Parent and Purchaser in their sole discretion:
(a) The Company shall have performed or complied with in all material respects each of its agreements and covenants contained in this Agreement and the Stock Option Agreement required to be performed on or complied with at or prior to the Closing Date.
(b) Each of Effective Time; the representations and warranties of the Company contained in this Agreement and the Stock Option Agreement qualified as to materiality shall be true in all respects, and correct those not so qualified shall be true in all material respects, in each case when made and on and as of the Closing Date Effective Time with the same force and effect as if made on and as of such date (other than date, except that those representations and warranties that address matters only made as of a certain date, which specific date shall be true in all respects (or all material respects, as the case may be) on and correct as of such certain date; and Parent shall have received a certificate signed by an authorized officer of the Company to the foregoing effect.
(b) except where No action or proceeding shall be pending against the failure to be so true and correct (without giving effect to Company or Parent before any limitation or qualification as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein) would not, individually or in the aggregate, Governmental Entity which is reasonably be expected likely to have a Material Adverse Effect; provided thatEffect or to prohibit, notwithstanding restrain, enjoin or restrict the foregoing, (i) the representations and warranties set forth in Section 3.1 (Organization, Standing, and Corporate Power; Subsidiaries), Section 3.2 (Corporate Authorization), Section 3.18 (Voting Requirements), Section 3.20 (Brokers) and Section 3.22(l) and (n) (certain FDA and Related Matters) shall be true and correct in all material respects as consummation of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct in all material respects as of such certain date) and (ii) the representations and warranties set forth in Section 3.4 (Capital Structure) shall be true and correct in all respects as of the Closing Date (other than de minimis failures to be true and correct in all respects)Merger.
(c) Since All consents, approvals, authorizations and permits of, actions by, filings with or notifications to, Governmental Entities and third parties required in connection with the Merger, including the issuance of all required licenses and approvals by the State of Colorado Limited Gaming Control Commission and the Colorado Division of Gaming shall have been obtained, taken or made.
(d) The employment agreements in effect between the Company and Xxxxxxx X. Xxxxxx, Xx., Xxxx X. Xxxxx, Xxxxxxx Xxxxx, Xxxxxx X. Xxxxxxxx and Xxxx Xxxxxxx on the date of this Agreement, there Agreement shall not have occurred or exist any event, change, occurrence, circumstance, be in effect or condition which (individually or in at the aggregate) has had, or would reasonably be expected to have, a Material Adverse EffectEffective Time.
(de) Dissenting Shares shall not constitute more than 5% of the outstanding Company Common Stock.
(f) Parent and Purchaser shall have received a certificate with confirming satisfaction of the conditions set forth in Section 7.3(a), Section 7.3(b) and Section 7.3(c) signed on behalf of from counsel for the Company by an authorized senior executive officer opinion substantially in the form of the Company.Exhibit B.
Appears in 1 contract
Samples: Merger Agreement (Colorado Gaming & Entertainment Co)
Conditions to Obligations of Parent and Purchaser to Effect the Merger. The obligations of Parent and Purchaser to effect the Merger shall be are further subject to the fulfillment satisfaction or waiver at or prior to the Closing Date Effective Time of the following conditions, any of which may be waived by Parent and Purchaser in their sole discretion:
(a) (i) The representations and warranties of the Company set forth in Sections 3.2, 3.3 and 3.5(a) and all statements set forth in Section 3.26 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Sections 3.2, 3.3 and 3.5(a) and the statements set forth in Section 3.26) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the foregoing effect;
(b) The Company shall have performed in all material respects each of its agreements and covenants contained in obligations under this Agreement required to be performed on by it at or prior to the Closing Date.
(b) Each of Effective Time pursuant to the representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct as of such certain date) except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided that, notwithstanding the foregoing, (i) the representations and warranties set forth in Section 3.1 (Organization, Standing, and Corporate Power; Subsidiaries), Section 3.2 (Corporate Authorization), Section 3.18 (Voting Requirements), Section 3.20 (Brokers) and Section 3.22(l) and (n) (certain FDA and Related Matters) shall be true and correct in all material respects as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct in all material respects as of such certain date) and (ii) the representations and warranties set forth in Section 3.4 (Capital Structure) shall be true and correct in all respects as of the Closing Date (other than de minimis failures to be true and correct in all respects).
(c) Since the date terms of this Agreement, there shall not have occurred or exist any event, change, occurrence, circumstance, effect or condition which (individually or in the aggregate) has had, or would reasonably be expected to have, a Material Adverse Effect.
(d) and Parent and Purchaser shall have received a certificate with confirming satisfaction of the conditions set forth in Section 7.3(a), Section 7.3(b) and Section 7.3(c) signed on behalf of the Company by an the Chief Executive Officer or Chief Financial Officer to such effect;
(c) There shall not be pending any suit, action or proceeding by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company, Parent, Purchaser or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement;
(d) Parent shall have received the opinion of Xxxxxxxx & Xxxxxx, LLP, counsel to Parent, in form and substance reasonably satisfactory to Parent, on the date on which the S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from officers of Parent, Purchaser and the Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed or the Effective Time, as applicable, to the effect that (i) the Integrated Transaction will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), Xxxxxxxx & Knight, LLP, shall have received and may rely upon the affiliate letters, certificates and representations referred to in Section 5.13(d);
(e) The number of Dissenting Shares shall not exceed 10% of the outstanding shares of Company Common Stock;
(f) All material consents and approvals of any Person that the Company or Parent or any of their respective Subsidiaries is required to obtain in connection with the consummation of the Merger, including consents and approvals from parties to loans, contracts, leases or other agreements, shall have been obtained, and a copy of each such consent and approval shall have been provided to Parent at or prior to the Closing, except for such consents and approvals the failure of which to be obtained individually or in the aggregate would not be reasonably likely to have or result in a Material Adverse Effect on the Company or Parent, as applicable;
(g) The Company must have delivered to its counsel, Parent and Parent’s counsel a certificate signed on behalf of the Company by a duly authorized senior executive officer of the Company certifying the representations set forth in Section 3.26 and as otherwise reasonably requested by the Company’s or Parent’s tax counsel; and
(h) During the period from the date of execution of this Agreement until the Effective Time, there shall not have occurred a Material Adverse Effect on the Company.
Appears in 1 contract
