Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of the following additional conditions: (a) Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of Company contained in this Agreement shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time except as contemplated by this Agreement, and Parent and Sub shall have received a Certificate of the Chairman of the Board, the President or an Executive Vice President of Company as to the satisfaction of this condition. (b) Parent and Sub shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel to Parent and Sub in form and substance reasonably satisfactory to Parent and Sub, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others. (c) Parent and Sub shall have received an opinion from Xxxxxx X. Xxxxxxx, Senior Vice President and General Counsel of Company or Debevoise & Xxxxxxxx, special counsel for Company, dated the Effective Time, to the effect that: (i) Company is a corporation validly existing under the laws of the State of Delaware. (ii) Company has the corporate power to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company. (iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought. (iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion. (v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Sub. (d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the Merger.
Appears in 4 contracts
Samples: Merger Agreement (Ornda Healthcorp), Merger Agreement (Tenet Healthcare Corp), Merger Agreement (Littlejohn Joseph & Levy Fund L P)
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following additional conditions:
(ai) The Company shall have performed or complied with in all material respects its obligations under agreements and covenants contained in this Agreement required to be performed by it or complied with at or prior to the Effective Time and Closing Date; (ii) the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects at (without regard to materiality or Material Adverse Effect qualifiers), in each case when made and unless a representation speaks of a specific date, on and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date, except as contemplated by this Agreementwhere failures to be so true could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; PROVIDED HOWEVER, such Material Adverse Effect qualification shall be inapplicable with respect to the representations and warranties contained in Sections 2.3, 2.14, 2.17 and 2.18 (which representations shall be true and correct at the applicable times in all material respects); and (iii) Parent and Sub shall have received a Certificate certificate signed on behalf of the Chairman Company by the chief executive officer and chief financial officer of the Board, the President or an Executive Vice President of Company as to the satisfaction of this conditionsuch effect.
(b) Parent At any time on or after the date of this Agreement there shall not have occurred any condition, event or occurrence which could, individually or in the aggregate, reasonably be likely to cause a Material Adverse Effect.
(c) The opinion, based on appropriate representations of the Company and Sub shall have received an opinion Parent, of Skadden, Arps, Slate, Xxxxxxx Xxxxxxx & XxxxXxxxxxxx, counsel to Parent Parent, to the effect that (i) the Merger will be treated for Federal income Tax purposes as a reorganization within the meaning of Section 368(a) of the Code and (ii) Parent, Sub in form and substance reasonably satisfactory the Company will each be a party to Parent and Subthe reorganization within the meaning of Section 368(b) of the Code, dated on or about the date of the mailing of and referred to in the Proxy Statement as first mailed to stockholdersthe stockholders of the Company, which opinion shall not have been withdrawn or modified in any material respect as of the Closing Date.
(d) There shall not be pending or threatened by any governmental authority any Action before any United States court or other governmental body of competent jurisdiction (i) challenging or seeking to restrain or prohibit the consummation of the Merger or seeking to obtain from Parent or any of its subsidiaries or the Company any material damages, (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries, to dispose of or hold separate any significant portion of the business or assets of the Company, Parent or any of their respective subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (iii) seeking to prohibit Parent or any of its subsidiaries from effectively controlling in any material respect the business or operations of the Company or its subsidiaries.
(e) All approvals or consents of any governmental authority (whether domestic, foreign or supranational) in connection with the Merger and the consummation of the other transactions contemplated hereby (including all relevant statutory, regulatory or other governmental waiting period expirations), which if not obtained in connection with the consummation of the transactions contemplated hereby, could reasonably be expected to result in a Substantial Detriment (each a "REQUIRED REGULATORY APPROVAL"), shall have been obtained, have been declared or filed or be deemed to have occurred, as the case may be, and all such Required Regulatory Approvals shall be reconfirmed in full force and effect; provided, however, that a Required Regulatory Approval shall not be deemed to have been obtained if in connection with the grant thereof there shall have been an imposition by any governmental authority of any condition, requirement, restriction or change of regulation, or any other action directly or indirectly related to such grant taken by such governmental authority (including with respect to divestitures of assets or subsidiaries), which could reasonably be expected to result in a Substantial Detriment.
(f) All third party consents set forth on Schedule 6.3(f) attached hereto shall have been obtained.
(g) Parent shall have received the agreements referred to in Section 5.11.
(h) Parent shall have received the letters referred to in Section 5.2(a).
(i) Each of the members of the Board of Directors of the Company shall have duly delivered to the Company their written resignations, effective as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) as directors of the Code. In rendering such opinionCompany, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others.
(c) Parent and Sub shall have received an opinion from Xxxxxx X. Xxxxxxxcopies of each such resignation and prior to such resignation, Senior Vice President and General Counsel the Board of Directors of the Company or Debevoise & Xxxxxxxx, special counsel for shall have fixed the authorized number of directors of the Company, dated effective as of the Effective Time, to the effect that:
at three (i3) Company is a corporation validly existing under the laws and shall have appointed, effective as of the State Effective Time, Xxxxxx Xxxxxx, Xxxxxxx XxXxxxx and Xxxxxxx Xxxxx as the members of Delawarethe Board of Directors of the Surviving Corporation, and Parent shall have received evidence of such actions.
(iij) Company has For all times prior to the corporate power to enter into this Agreement Closing, each of Messrs. Kurnit and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby Day (absent death or disability) shall have been duly authorized employed by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its termsthe terms of Section 5.15 and, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may Closing, each of Messrs. Kurnit and Day shall be brought.
ready, willing and able (ivabsent death or permanent disability) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth commence employment with Parent in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects accordance with the requirements terms of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Subtheir respective employment agreements with Parent.
(d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the Merger.
Appears in 2 contracts
Samples: Merger Agreement (About Com Inc), Merger Agreement (About Com Inc)
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment, at or prior to the Effective Time Time, of the following additional conditions:
(a) Company Pantheon and the Pantheon Shareholders shall have performed in all material respects its obligations under this Agreement their respective agreements contained herein required to be performed by it at or prior to the Effective Time Time, and the representations and warranties of Company Pantheon and the Pantheon Shareholders contained in this Agreement herein shall be true when made and correct in all material respects (except for representations and warranties made as of a specified date, which need only be true as of such date) at and as of the Effective Time as if made at and as of such time time, except as contemplated by this Agreement, and Parent and Sub shall have received a Certificate of the Chairman of the Board, the President or an Executive Vice President of Company as to the satisfaction of this condition.hereby;
(b) Parent and Sub the appropriate officers of Pantheon shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel executed and delivered to Parent and Sub in form and substance reasonably satisfactory to Parent and Subat the Closing, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and othersPantheon's Closing Certificate.
(c) Pantheon and the Pantheon Shareholders shall have obtained or caused to be obtained all of the Consents, if any, listed on Schedule 7.2(c) --------------- hereto;
(d) there shall have been delivered to Parent at the Closing, duly executed by each of the Pantheon Shareholders, (i) an Agreement to be Bound to the Stockholders' Agreement, in the form of Exhibit "J" hereto, including for ----------- each of the Pantheon Shareholders who is married an executed Spousal Waiver, substantially in the form attached thereto; and Sub (ii) an Agreement to be Bound to the Registration Rights Agreement;
(e) Parent shall have received an opinion from Xxxxxx X. Xxxxxxxa corporate certificate of good standing for Pantheon, Senior Vice President and General Counsel a copy of Company or Debevoise & Xxxxxxxxthe Articles of Incorporation of Pantheon, special counsel for Company, dated both as certified by the Effective Time, Secretary of State of California;
(f) as of the date three business days prior to the effect that:Closing Date the Pantheon shall be $-0-;
(g) Parent shall have received, at the Closing, an Option Agreement executed by each Option recipient;
(h) Parent shall have received, at the Closing, a duly executed opinion of counsel to Pantheon and the Pantheon Shareholders, substantially in the form of Exhibit "K" hereto; -----------
(i) Company is a corporation validly existing under Parent shall have received from Pantheon the laws of Tax Clearance Certificate, indicating that no taxes are owed by Pantheon to state taxing authorities in the State of Delaware.California;
(iij) Company has the corporate power Pantheon shall have furnished evidence to enter into this Agreement Parent's satisfaction of performance under Sections 6.7(a), 6.9 and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights6.11 hereof, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Sub.
(d) Parent and Sub shall have received a letter from Ernst & YoungPantheon or the Pantheon Shareholders, LLPas the case may be, Companysuch other documents as Parent's independent accountants, dated the Effective Time and addressed to Parent and Subcounsel shall have reasonably requested, in form and substance reasonably satisfactory to Parent's counsel; and
(k) Parent in connection with shall have received evidence satisfactory to it that at the procedures undertaken by them with respect to Closing the financial statements assets and other financial information of Company and Company Subsidiaries contained properties used in the Registration Statement Pantheon Business are free and the clear of all Liens other matters contemplated by the AICPA Statement No. 72 than Permitted Liens (as hereinafter defined), and customarily included that all Pantheon Shareholders are accredited investors in comfort letters relating to transactions similar to the Mergeraccordance with Section 4.31(a) hereof.
Appears in 1 contract
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment, at or prior to the Effective Time of the following additional conditions:
(a) Company Micro and the Micro Shareholders shall have performed in all material respects its obligations under their respective agreements contained in this Merger Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of Company Micro and the Micro Shareholders contained in this Merger Agreement shall be true when made and correct in all material respects (except for representations and warranties made as of a specified date, which need only be true as of such date) at and as of the Effective Time as if made at and as of such time time, except as contemplated by this Merger Agreement, and Parent and Sub shall have received a Certificate of the Chairman of the Board, the President or an Executive Vice President of Company as to the satisfaction of this condition.;
(b) Parent and Sub shall have received an opinion completed its due diligence review of SkaddenMicro's customer information, Arps, Slate, Xxxxxxx & Xxxx, counsel employees and software not provided to Parent prior to the date of this Agreement, and Sub shall have completed its financial due diligence with respect to Micro's customer information; and shall be satisfied that (i) nothing in form such review could reasonably be expected to cause a material adverse change in the Micro Business or in the financial condition of Micro, and substance (ii) the features, functionality and performance of the Iguana Software are reasonably satisfactory to Parent and Sub, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others.;
(c) the appropriate officers of Micro shall have executed and delivered to Parent at the Closing, a closing certificate, and Sub incumbency certificate substantially in the form of Exhibit "E" hereto; -----------
(d) Micro and the Micro Shareholders shall have obtained or caused to be obtained all of the Consents, if any, listed on Schedule 7.2(d) hereto; ---------------
(e) there shall have been delivered to Parent at the Closing, duly executed by the Controlling Shareholders, (i) an Agreement to be Bound to the Second Amended and Restated Stockholders' Agreement of Parent, dated December 17, 1997 (the "Stockholders' Agreement"), substantially in the form of Exhibit ------- "F" hereto; and (ii) an Agreement to be Bound by the Registration Rights --- Agreement;
(f) Parent shall have received an opinion from Xxxxxx X. Xxxxxxxa corporate certificate of good standing for Micro, Senior Vice President and General Counsel a copy of Company or Debevoise & Xxxxxxxxthe Certificate of Incorporation of Micro, special counsel for Company, dated both as certified by the Effective Time, Secretary of State of New York;
(g) as of three business days prior to the effect that:Closing, the Micro Debt (as defined on Schedule 3.1(c) hereto) shall be no greater than $700,000, all of --------------- which will be paid at Closing and reduce the cash available at Closing for the Controlling Shareholders;
(h) Micro shall have complied with its obligations under Section 6.6(a) hereof;
(i) Company is Parent shall have received, at the Closing, a corporation validly existing under duly executed opinion of counsel to Micro and the laws Micro Shareholders, substantially in the form of the State of Delaware.Exhibit "G" hereto; -----------
(ii) Company has the corporate power to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Sub.
(dj) Parent and Sub shall have received a letter evidence satisfactory to it that Micro has filed, pursuant to Section 907(e)(2)(H) of the BCL, an estimated cessation franchise tax report through the anticipated Closing Date;
(k) Parent shall have received from Ernst & YoungMicro or the Micro Shareholders, LLPas the case may be, Companysuch other documents as Parent's independent accountants, dated the Effective Time and addressed to Parent and Subcounsel shall have reasonably requested, in form and substance reasonably satisfactory to Parent's counsel;
(l) Parent shall have received evidence satisfactory to it that at the Closing the assets and properties used in connection the Micro Business are free and clear of all Liens other than Permitted Liens; and
(m) Micro shall have executed and delivered an Assignment and Assumption Agreement, substantially in the form of Exhibit "H" hereto, with the procedures undertaken by them with ----------- respect to the financial statements and other financial information of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the Mergerits Sublease (as defined therein).
Appears in 1 contract
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Date of the additional following additional conditions, unless waived by Parent:
(a) The Company shall have performed in all material respects its obligations under agreements contained in this Agreement required to be performed by it at on or prior to the Effective Time Date, and the representations and warranties of the Company contained in this Agreement shall be true when made and correct in all material respects at on and as of the Effective Time Date as if made at on and as of such time date (except to the extent they relate to a particular date), except as expressly contemplated or permitted by this Agreement, and Parent and Sub shall have received a Certificate certificate of the Chairman of the Board, the President or an Chief Executive Officer or a Vice President of the Company as to the satisfaction of this conditionthat effect.
(b) From the date of this Agreement through the Effective Date, there shall not have occurred any change, individually or together with other changes, that has had, or would reasonably be expected to have, a material adverse change in the financial condition, business, results of operations or prospects of the Company and its Subsidiaries, taken as a whole.
(c) The number of shares of Company Common Stock for which written demand for appraisal has been properly made pursuant to Section 262 of the DCGL shall not have exceeded 5% of the total number of shares of Company Common Stock outstanding immediately prior to the Effective Date.
(d) The Company shall have furnished Parent and Sub with a certified copy of the resolutions adopted by the Company's directors and stockholders approving the terms, execution and delivery of this Agreement, the Merger contemplated hereby, and the Company's performance hereunder, together with a certificate of incumbency of the Company, executed by its President or a Vice-President, and its Secretary, which lists the officers and specimen signatures of the officers who have executed this Agreement and all other documents and instruments contemplated by this Agreement on behalf of the Company.
(e) Parent and Sub shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel to Parent and Sub in form and substance reasonably satisfactory to Parent and Subthe Company's legal counsel, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective TimeClosing Date, substantially to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others.
(c) Parent and Sub shall have received an opinion from Xxxxxx X. Xxxxxxx, Senior Vice President and General Counsel of Company or Debevoise & Xxxxxxxx, special counsel for Company, dated the Effective Time, to the effect that:
(i) Company is a corporation validly existing under the laws of the State of Delaware.
(ii) Company has the corporate power to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained thereinmatters set forth on Exhibit 10.3(e) attached hereto, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable addressed to Parent and Sub.
(d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the Merger.
Appears in 1 contract
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment, at or prior to the Effective Time Time, of the following additional conditions:
(a) Company Pequot and the Pequot Shareholders shall have performed in all material respects its obligations under this Agreement their respective agreements contained herein required to be performed by it at or prior to the Effective Time Time, and the representations and warranties of Company Pequot and the Pequot Shareholders contained in this Agreement herein shall be true when made and correct in all material respects (except for representations and warranties made as of a specified date, which need only be true as of such date) at and as of the Effective Time as if made at and as of such time time, except as contemplated by this Agreement, and Parent and Sub shall have received a Certificate of the Chairman of the Board, the President or an Executive Vice President of Company as to the satisfaction of this condition.hereby;
(b) Parent and Sub the appropriate officers of Pequot shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel executed and delivered to Parent and Sub in form and substance reasonably satisfactory to Parent and Subat the Closing, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning of section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and othersPequot's Closing Certificate.
(c) Pequot and the Pequot Shareholders shall have obtained or caused to be obtained all of the Consents, if any, listed on Schedule 7.2(c) hereto; ---------------
(d) there shall have been delivered to Parent at the Closing, duly executed by each of the Pequot Shareholders, (i) an Agreement to be Bound to the Stockholders' Agreement, substantially in the form of Exhibit "F" hereto; and Sub ----------- (ii) an Agreement to be Bound to the Registration Rights Agreement;
(e) Parent shall have received an opinion from Xxxxxx X. Xxxxxxxa certificate of existence for Pequot, Senior Vice President and General Counsel a copy of Company or Debevoise & Xxxxxxxxthe Certificate of Incorporation of Pequot, special counsel for Company, dated both as certified by the Effective Time, Secretary of State of Connecticut;
(f) as of the date three business days prior to the effect that:Closing Date the Pequot Debt shall be no greater than $44,345;
(g) Each Person to receive Options at the Closing shall have executed and delivered an Option Agreement;
(h) Parent shall have received, at the Closing, a duly executed opinion of counsel to Pequot and the Pequot Shareholders, substantially in the form of Exhibit "G" hereto; -----------
(i) Company is a corporation validly existing under the laws of the State of Delaware.
(ii) Company has the corporate power to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Sub.
(d) Parent and Sub shall have received a letter from Ernst & YoungPequot or the Pequot Shareholders, LLPas the case may be, Companysuch other documents as Parent's independent accountants, dated the Effective Time and addressed to Parent and Subcounsel shall have reasonably requested, in form and substance reasonably satisfactory to Parent's counsel; and
(j) Parent in connection with shall have received evidence satisfactory to it that at the procedures undertaken by them with respect to Closing the financial statements assets and other financial information of Company and Company Subsidiaries contained properties used in the Registration Statement Pequot Business are free and the clear of all Liens other matters contemplated by the AICPA Statement No. 72 than Permitted Liens (as hereinafter defined), and customarily included that all Pequot Shareholders are accredited investors in comfort letters relating to transactions similar to the Mergeraccordance with Section 4.31(a) hereof.
Appears in 1 contract
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Date of the additional following additional conditionscondi- tions, unless waived by Parent:
(a) The Company shall have performed in all material respects its obligations under agreements contained in this Merger Agreement required re- quired to be performed by it at on or prior to the Effective Time Date and the representations and warranties of the Company contained in this Merger Agreement shall be true and correct in all material respects at when made and on and as of the Effective Time Date as if made at on and as of such time date, except (i) as contemplated or permitted by this Merger Agreement, (ii) for representations and warranties which are by their express provisions made as of a specific date or dates which were or will be true in all material re- spects at such date or dates, and (iii) that if the Effective Date occurs after the nine month anniversary of the date hereof pursuant to the second proviso of Section 9.1(b), then the rep- resentations and warranties need only be true as of the nine month anniversary of the date of this Merger Agreement, and Parent and Sub shall have received a Certificate certificate of the Chairman of the Board, the President Presi- dent or an Chief Executive Officer or a Vice President of Company as the Com- pany to the satisfaction of this conditionthat effect.
(b) Parent and Sub shall have received an opinion a letter of SkaddenDeloitte & Touche LLP, Arpsthe Company's independent auditors, Slatedated a date within two business days before the date on which the Registra- tion Statement shall become effective and addressed to Parent, Xxxxxxx & Xxxx, counsel to Parent and Sub in form and substance reasonably satisfactory to Parent and Subcustomary in scope and substance for letters delivered by inde- pendent public accountants in connection with registration statements similar to the Registration Statement.
(c) Parent shall have received a favorable opinion of Wachtell, dated on or about the date of the mailing of the Proxy Statement to stockholdersLipton, which opinion shall be reconfirmed as of the Effective TimeRosen & Katz, substantially based upon certain factual representatixxx xf txx Xompany and Parent reasonably requested by such counsel, to the effect that the Merger will constitute a reorganization be treated for Federal income tax purposes as a reorganization within the meaning of section Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others.
(cd) Parent and Sub [Reserved]
(e) Company shall have received an opinion from Xxxxxx X. Xxxxxxxobtained all consents, Senior Vice President ap- peals, releases or authorizations from, and General Counsel of Company shall have made all filings and registrations ("Consents") to or Debevoise & Xxxxxxxxwith, special counsel for Companyany person, dated the Effective Time, including but not limited to the effect that:
(i) Company is a corporation validly existing under the laws of the State of Delaware.
(ii) Company has the corporate power any Governmental Entity necessary to enter into this Agreement and be obtained or made in order to consummate the transactions contemplated hereby; and by this Agreement, unless the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Companyfailure to obtain such Consents would not, enforceable against Company in accordance with its terms, except (A) as may be limited by individually or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigationaggregate, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Sub.
(d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the Merger.have
Appears in 1 contract
Samples: Merger Agreement (Mattel Inc /De/)
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following additional conditions:
(a) The Company shall have performed or complied with in all material respects its obligations under agreements and covenants contained in this Agreement required to be performed by it or complied with at or prior to the Effective Time Closing Date and the representations and warranties of the Company contained in this Agreement qualified as to materiality shall be true in all respects, and correct those not so qualified shall be true in all material respects at respects, in each case when made and on and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date, except as expressly contemplated or otherwise expressly permitted by this Agreement, and . Parent and Sub shall have received a Certificate certificate signed on behalf of the Chairman Company by the chief executive officer and chief financial officer of the Board, the President or an Executive Vice President of Company as to the satisfaction of this conditionsuch effect.
(b) Parent and Sub shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx Xxxxxxx & XxxxXxxxxxxx, counsel to Parent and Sub in form and substance reasonably satisfactory to Parent and SubParent, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes:
(i) the Merger will constitute a reorganization for Federal income tax purposes "reorganization" within the meaning of section Section 368(a) of the Code, and the Company, Sub and Parent will each be a party to such reorganization within the meaning of Section 368(b) of the Code.
(ii) no gain or loss will be recognized by Parent, Sub or the Company as a result of the Merger;
(iii) no gain or loss will be recognized by the shareholders of the Company upon the exchange of their Company Common Stock solely for shares of Parent Common Stock pursuant to the Merger, except with respect to cash, if any, received in lieu of fractional shares of Parent Common Stock;
(iv) the aggregate tax basis of the shares of Parent Common Stock received solely in exchange for Company Common Stock pursuant to the Merger (including fractional shares of Parent Common Stock for which cash is received) will be the same as the aggregate tax basis of the Company Common Stock exchanged therefor;
(v) the holding period for shares of Parent Common Stock received solely in exchange for Company Common Stock pursuant to the Merger will include the holding period of the Company Common Stock exchanged therefor, provided such Company Common Stock was held as capital assets by the stockholder at the Effective Time; and
(vi) a shareholder of the Company who receives cash in lieu of a fractional share of Parent Common Stock will recognize gain or loss equal to the difference, if any, between such shareholder's tax basis in such fractional share (as described in clause (iv) above) and the amount of cash received. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx may require receive and rely upon representations contained in a certificate of Parent substantially in the form of the Parent Tax Certificate attached to the Parent Disclosure Schedule, a certificate of the Company substantially in the form of the Company Tax Certificate attached to the Disclosure Schedule and representations contained in other appropriate certificates of officers of the Company, Parent, Sub, Company and others as well as certificates of certain shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company Company, and others.
(c) Parent and Sub Subject to Parent's compliance with Section 5.8, there shall have received an opinion from Xxxxxx X. Xxxxxxxnot be pending or threatened by any governmental entity any suit, Senior Vice President and General Counsel of Company action or Debevoise & Xxxxxxxxproceeding, special counsel for Company, dated the Effective Time, to the effect that:
(i) Company is a corporation validly existing under the laws of the State of Delaware.
(ii) Company has the corporate power challenging or seeking to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and restrain or prohibit the consummation of the transactions contemplated hereby have been duly authorized Merger or seeking to obtain from Parent or any of its Subsidiaries any damages that are material in relation to Parent and its Subsidiaries taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by Parent or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms their respective Subsidiaries of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion any material portion of the court before which any proceeding therefor may be brought.
(iv) Neither business or assets of the execution and delivery of this Agreement by Company, nor the consummation by Company Parent or any of their respective Subsidiaries, to dispose of or hold separate any material portion of the transactions contemplated herebybusiness or assets of the Company, will violate Parent or any of their respective Subsidiaries, as a result of the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company Merger or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel other transactions contemplated by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Companythis Agreement, or for (iii) seeking to prohibit Parent or any of its Subsidiaries from effectively controlling in any material respect the accuracy, completeness business or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements operations of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement Company or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Subits Subsidiaries.
(d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the Merger.
Appears in 1 contract
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following additional conditions:
(a) The Company shall have performed or complied with in all material respects its obligations under agreements and covenants contained in this Agreement required to be performed by it or complied with at or prior to the Effective Time Closing Date and the representations and warranties of the Company contained in this Agreement qualified as to materiality shall be true in all respects, and correct those not so qualified shall be true in all material respects at respects, in each case when made and on and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date, except as expressly contemplated or otherwise expressly permitted by this Agreement, and . Parent and Sub shall have received a Certificate certificate signed on behalf of the Chairman Company by the chief executive officer and chief financial officer of the Board, the President or an Executive Vice President of Company as to the satisfaction of this conditionsuch effect.
(b) Parent and Sub shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel to Parent and Sub in form and substance reasonably satisfactory to Parent and SubThe opinion, dated on or about the date of the mailing of and referred to in the Proxy Statement as first mailed to stockholders, which opinion shall be reconfirmed as stockholders of the Effective TimeCompany, substantially based on appropriate representations of the Company and Parent and principal stockholders of the Company, of Simpxxx Xxxxxxx & Xartxxxx, counsel to Parent, to the effect that Parent, Sub and the Merger Company will constitute a reorganization not recognize income, gain or loss for Federal income tax purposes within the meaning of section 368(a) as a result of the Code. In rendering Merger, shall not have been withdrawn or modified in any material respect, unless if such opinionopinion is withdrawn or modified, Skaddenthe amount of income, Arpsgain or loss potentially recognizable will not have, Slateor could not reasonably be expected to have, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers a Material Adverse Effect with respect of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others.
(c) Parent and Sub Subject to Parent's compliance with Section 5.8, there shall have received an opinion from Xxxxxx X. Xxxxxxxnot be pending or threatened by any governmental entity any suit, Senior Vice President and General Counsel of Company action or Debevoise & Xxxxxxxx, special counsel for Company, dated the Effective Time, to the effect that:
proceeding (i) Company is a corporation validly existing under the laws of the State of Delaware.
(ii) Company has the corporate power challenging or seeking to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and restrain or prohibit the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company Merger or any of the Company other transactions contemplated by this Agreement or seeking to obtain from Parent or any of its Subsidiaries is subject and which has been specifically identified to such counsel by Company any damages that are material in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable relation to Parent and Subits Subsidiaries taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective Subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, to dispose of or hold separate any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (iii) seeking to prohibit Parent or any of its Subsidiaries from effectively controlling in any material respect the business or operations of the Company or its Subsidiaries.
(d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated No more than 5% of the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information outstanding shares of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated Common Stock shall be held by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the MergerDissenting Stockholders.
Appears in 1 contract
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following additional conditions:
(a) The Company shall have performed or complied with in all material respects its obligations under agreements and covenants contained in this Agreement required to be performed by it or complied with at or prior to the Effective Time Closing Date and the representations and warranties of the Company contained in this Agreement qualified as to materiality shall be true in all respects, and correct those not so qualified shall be true in all material respects at respects, in each case when made and on and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date, except as expressly contemplated or otherwise expressly permitted by this Agreement, and . Parent and Sub shall have received a Certificate certificate signed on behalf of the Chairman Company by the chief executive officer and chief financial officer of the Board, the President or an Executive Vice President of Company as to the satisfaction of this conditionsuch effect.
(b) Parent and Sub shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel to Parent and Sub in form and substance reasonably satisfactory to Parent and SubThe opinion, dated on or about the date of the mailing of and referred to in the Proxy Statement as first mailed to stockholders, which opinion shall be reconfirmed as stockholders of the Effective TimeCompany, substantially based on appropriate representations of the Company and Parent and principal stockholders of the Company, of Simpson Thacher & Bartlett, counsel to Parent, to the effect that the Merger xxxx Xxxxxx, Xub xxx xxx Company will constitute a reorganization not recognize income, gain or loss for Federal income tax purposes within the meaning of section 368(a) as a result of the Code. In rendering Merger, shall not have been withdrawn or modified in any material respect, unless if such opinionopinion is withdrawn or modified, Skaddenthe amount of income, Arpsgain or loss potentially recognizable will not have, Slateor could not reasonably be expected to have, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers a Material Adverse Effect with respect of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others.
(c) Parent and Sub Subject to Parent's compliance with Section 5.8, there shall have received an opinion from Xxxxxx X. Xxxxxxxnot be pending or threatened by any governmental entity any suit, Senior Vice President and General Counsel of Company action or Debevoise & Xxxxxxxx, special counsel for Company, dated the Effective Time, to the effect that:
proceeding (i) Company is a corporation validly existing under the laws of the State of Delaware.
(ii) Company has the corporate power challenging or seeking to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and restrain or prohibit the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company Merger or any of the Company other transactions contemplated by this Agreement or seeking to obtain from Parent or any of its Subsidiaries is subject and which has been specifically identified to such counsel by Company any damages that are material in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable relation to Parent and Subits Subsidiaries taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective Subsidiaries of any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, to dispose of or hold separate any material portion of the business or assets of the Company, Parent or any of their respective Subsidiaries, as a result of the Merger or any of the other transactions contemplated by this Agreement, or (iii) seeking to prohibit Parent or any of its Subsidiaries from effectively controlling in any material respect the business or operations of the Company or its Subsidiaries.
(d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated No more than 5% of the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information outstanding shares of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated Common Stock shall be held by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the MergerDissenting Stockholders.
Appears in 1 contract
Samples: Merger Agreement (Fred Meyer Inc)
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment, at or prior to the Effective Time Time, of the following additional conditions:
(a) Company Spinners and the Spinners Shareholders shall have performed in all material respects its obligations under this Agreement their respective agreements contained herein required to be performed by it at or prior to the Effective Time Time, and the representations and warranties of Company Spinners and the Spinners Shareholders contained in this Agreement herein shall be true when made and correct in all material respects (except for representations and warranties made as of a specified date, which need only be true as of such date) at and as of the Effective Time as if made at and as of such time time, except as contemplated hereby;
(b) the appropriate officers of Spinners shall have executed and delivered to Parent at the Closing, Spinners Closing Certificate;
(c) Spinners and the Spinners Shareholders shall have obtained or caused to be obtained all of the Consents, if any, listed on Schedule 7.2(c) -------------- hereto;
(d) there shall have been delivered to Parent at the Closing, duly executed by this each of the Spinners Shareholders, (i) an Agreement to be Bound to the Stockholders' Agreement, substantially in the form of Exhibit "F" hereto; ---------- and (ii) an Agreement to be Bound to the Registration Rights Agreement;
(e) Parent and Sub shall have received a corporate certificate of good standing for Spinners, and a copy of the Certificate of Incorporation of Spinners, both as certified by the Chairman Secretary of the Board, the President or an Executive Vice President State of Company as to the satisfaction of this condition.Delaware;
(bf) Parent and Sub shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel to Parent and Sub in form and substance reasonably satisfactory to Parent and Sub, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Timedate three business days prior to the Closing Date the Spinners Debt shall be no greater than $680,000;
(g) Spinners shall have complied with its obligations under Section 6.6(a) hereof;
(h) Parent shall have received, at the Closing, a duly executed opinion of counsel to Spinners and the Spinners Shareholders, substantially to in the effect that the Merger will constitute a reorganization for Federal income tax purposes within the meaning form of section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others.
(c) Parent and Sub shall have received an opinion from Xxxxxx X. Xxxxxxx, Senior Vice President and General Counsel of Company or Debevoise & Xxxxxxxx, special counsel for Company, dated the Effective Time, to the effect that:Exhibit "G" hereto; ----------
(i) Company is a corporation validly existing under the laws of the State of Delaware.
(ii) Company has the corporate power to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Sub.
(d) Parent and Sub shall have received a letter from Ernst & YoungSpinners or the Spinners Shareholders, LLPas the case may be, Companysuch other documents as Parent's independent accountants, dated the Effective Time and addressed to Parent and Subcounsel shall have reasonably requested, in form and substance reasonably satisfactory to Parent's counsel, and Parent shall have completed its due diligence review of Spinners and shall, in connection its sole and absolute discretion, be satisfied with the procedures undertaken by them with respect results thereof; and
(j) Parent shall have received evidence satisfactory to it that at the financial statements Closing the assets and other financial information of Company and Company Subsidiaries contained properties used in the Registration Statement Spinners Business are free and the clear of all Liens other matters contemplated by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the Mergerthan Permitted Liens (as hereinafter defined).
Appears in 1 contract
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of the following additional conditions:
(a) The Company shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time and the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects at and as of the Effective Time as if made at and as of such time except as contemplated by this Agreement, and Parent and Sub shall have received a Certificate of the Chairman of the Board, the President Chief Executive Officer or an Executive Vice President of the Company as to the satisfaction of this condition.
(b) Parent From the date of this Agreement to the Closing Date, there shall not have occurred a material adverse effect on the business, assets, liabilities, results of operations or financial condition of the Company and Sub its subsidiaries, taken as a whole, excluding any such effect to the extent resulting from (i) this Agreement, the transactions contemplated hereby or the announcement thereof, (ii) Parent's announcement or other disclosure of its plans or intentions with respect to the conduct of the business (or any portion thereof) of the Company or any of its subsidiaries or (iii) changes or conditions (including changes in economic, financial market, regulatory or political conditions, whether resulting from acts of terrorism or war or otherwise) affecting the U.S. economy or healthcare industry generally, to the extent such change or conditions do not disproportionately affect the Company and its Subsidiaries, taken as whole, relative to other hospital management companies in the United States.
(c) The MSCP Funds and the Management Shareholders shall have received an opinion rolled over a portion of Skaddentheir Common Shares in accordance with the Vanguard Stockholders Equity Commitment Letters.
(d) All consents of third parties that, Arpsif not obtained, Slatewould reasonably be expected to have a Company Material Adverse Effect shall have been obtained.
(e) The sum of (i) the aggregate amount of cash balances and cash equivalents of the Company as of immediately prior to the Closing, Xxxxxxx & Xxxxless the minimum amount of cash balances and cash equivalents that the Company is required to maintain as of the Closing Date pursuant to applicable Laws relating to the regulation of the Arizona Medicaid health plan owned by a Company Subsidiary and the Company's captive Bermuda insurance company or other similar applicable Laws, counsel and (ii) the aggregate amount of revolving credit available to Parent the Company under the New Credit Agreement as of the Closing Date shall exceed $66.3 million.
(f) The agreements, plans and Sub other arrangements contemplated by the term sheet attached hereto as Exhibit A shall have been executed and delivered or adopted, as appropriate, by all parties thereto other than Parent, and such agreements, plans and arrangements shall be on terms and conditions substantially consistent with those contained in such term sheets and shall otherwise be in form and substance reasonably satisfactory to Parent and Sub, dated on or about the date Parent.
(g) Each of the mailing of Company and Metalmark Subadvisor LLC shall have executed and delivered to Parent the Proxy Statement Transaction and Monitoring Fee Agreement in substantially the form attached as Exhibit B hereto.
(h) The Company shall have delivered a certification in form and substance reasonably acceptable to stockholdersParent, which opinion shall be reconfirmed as of not more than 30 days prior to the Effective TimeClosing Date, substantially to the effect that the Merger will constitute Company is not, nor has it been within 5 years of the date of the certification, a reorganization for Federal income tax purposes within the meaning of section 368(a) "United States real property holding corporation" as defined in Section 897 of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations The Company shall comply with the IRS notice requirements contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more regulations under Section 897 of the votes or value of any class of stock of Company and othersCode.
(c) Parent and Sub shall have received an opinion from Xxxxxx X. Xxxxxxx, Senior Vice President and General Counsel of Company or Debevoise & Xxxxxxxx, special counsel for Company, dated the Effective Time, to the effect that:
(i) Company is a corporation validly existing under the laws of the State of Delaware.
(ii) Company has the corporate power to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Sub.
(d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the Merger.
Appears in 1 contract
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Date of the additional following additional conditions, unless waived by Parent:
(a) The Company shall have performed in all material respects its obligations under agreements contained in this Merger Agreement required to be performed by it at on or prior to the Effective Time Date and the representations and warranties of the Company contained in this Merger Agreement shall be true in all material respects when made and correct on and as of the Effective Date as if made on and as of such date, except (i) as contemplated or permitted by this Merger Agreement, (ii) for representations and warranties which are by their express provisions made as of a specific date or dates which were or will be true in all material respects at such date or dates, and (iii) that if the Effective Date occurs after the nine month anniversary of the date hereof pursuant to the second proviso of Section 9.1(b), then the representations and warranties need only be true as of the Effective Time as if made at and as nine month anniversary of such time except as contemplated by the date of this Merger Agreement, and Parent and Sub shall have received a Certificate certificate of the Chairman of the Board, the President or an Chief Executive Officer or a Vice President of the Company as to the satisfaction of this conditionthat effect.
(b) Parent and Sub shall have received an opinion a letter of SkaddenDeloitte & Touche LLP, Arpsthe Company's independent auditors, Slatedated a date within two business days before the date on which the Registration Statement shall become effective and addressed to Parent, Xxxxxxx & Xxxx, counsel to Parent and Sub in form and substance reasonably satisfactory to Parent and Subcustomary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Registration Statement.
(c) Parent shall have received a favorable opinion of Wachtell, dated on or about the date Lipton, Xxxxx & Xxxx, based upon certain factual representations of the mailing of the Proxy Statement to stockholdersCompany and Parent reasonably requested by such counsel, which opinion shall be reconfirmed as of the Effective Time, substantially to the effect that the Merger will constitute a reorganization be treated for Federal income tax purposes as a reorganization within the meaning of section Section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others.
(cd) Parent and Sub (Reserved)
(e) Company shall have received an opinion from Xxxxxx X. Xxxxxxxobtained all consents, Senior Vice President appeals, releases or authorizations from, and General Counsel of Company shall have made all filings and registrations ("Consents") to or Debevoise & Xxxxxxxxwith, special counsel for Companyany person, dated the Effective Time, including but not limited to the effect that:
(i) Company is a corporation validly existing under the laws of the State of Delaware.
(ii) Company has the corporate power any Governmental Entity necessary to enter into this Agreement and be obtained or made in order to consummate the transactions contemplated hereby; and by this Agreement, unless the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Companyfailure to obtain such Consents would not, enforceable against Company in accordance with its terms, except (A) as may be limited by individually or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigationaggregate, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Sub.
(d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the Merger.have
Appears in 1 contract
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the satisfaction fulfillment at or prior to the Effective Time Closing Date of the following additional conditions:
(a) The Company shall have performed or complied with in all material respects its obligations under agreements and covenants contained in this Agreement required to be performed by it or complied with at or prior to the Effective Time Closing Date and the representations and warranties of the Company contained in this Agreement qualified as to materiality shall be true in all respects, and correct those not so qualified shall be true in all material respects at respects, in each case when made and on and as of the Effective Time Closing Date with the same force and effect as if made at on and as of such time date, except as expressly contemplated or otherwise expressly permitted by this Agreement, and . Parent and Sub shall have received a Certificate certificate signed on behalf of the Chairman Company by the chief executive officer and chief financial officer of the Board, the President or an Executive Vice President of Company as to the satisfaction of this conditionsuch effect.
(b) Parent and Sub shall have received an opinion of SkaddenSimpson Thacher & Bartlett, Arps, Slate, Xxxxxxx & Xxxx, counsel to Parent and Sub in form and substance reasonably satisfactory to Parent and Subsatisfxxxxxx xx Xxxxxt, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the xxe Effective Time, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion that are consistent with the state of facts existing as of the Effective Time, for federal income tax purposes:
(i) the Merger will constitute a reorganization for Federal income tax purposes "reorganization" within the meaning of section Section 368(a) of the Code, and the Company, Sub and Parent will each be a party to such 57 reorganization within the meaning of Section 368(b) of the Code.
(ii) no gain or loss will be recognized by Parent, Sub or the Company as a result of the Merger;
(iii) no gain or loss will be recognized by the shareholders of the Company upon the exchange of their Company Common Stock solely for shares of Parent Common Stock pursuant to the Merger, except with respect to cash, if any, received in lieu of fractional shares of Parent Common Stock;
(iv) the aggregate tax basis of the shares of Parent Common Stock received solely in exchange for Company Common Stock pursuant to the Merger (including fractional shares of Parent Common Stock for which cash is received) will be the same as the aggregate tax basis of the Company Common Stock exchanged therefor;
(v) the holding period for shares of Parent Common Stock received solely in exchange for Company Common Stock pursuant to the Merger will include the holding period of the Company Common Stock exchanged therefor, provided such Company Common Stock was held as capital assets by the stockholder at the Effective Time; and
(vi) a shareholder of the Company who receives cash in lieu of a fractional share of Parent Common Stock will recognize gain or loss equal to the difference, if any, between such shareholder's tax basis in such fractional share (as described in clause (iv) above) and the amount of cash received. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx Simpson Thacher & Xxxx Bartlett may require receive and rely upon representationx xxxxxxxxx xx a cxxxxxxxxte of Parent substantially in the form of the Parent Tax Certificate attached to the Parent Disclosure Schedule, a certificate of the Company substantially in the form of the Company Tax Certificate attached to the Disclosure Schedule and representations contained in other appropriate certificates of officers of the Company, Parent, Sub, Company and others as well as certificates of certain shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company Company, and others.
(c) Parent and Sub Subject to Parent's compliance with Section 5.8, there shall have received an opinion from Xxxxxx X. Xxxxxxxnot be pending or threatened by any governmental entity any suit, Senior Vice President and General Counsel of Company action or Debevoise & Xxxxxxxxproceeding, special counsel for Company, dated the Effective Time, to the effect that:
(i) Company is a corporation validly existing under the laws of the State of Delaware.
(ii) Company has the corporate power challenging or seeking to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and restrain or prohibit the consummation of the transactions contemplated hereby have been duly authorized Merger or seeking to obtain from Parent or any of its Subsidiaries any damages that are material in relation to Parent and its Subsidiaries taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by Parent or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms their respective Subsidiaries of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion any material portion of the court before which any proceeding therefor may be brought.
(iv) Neither business or assets of the execution and delivery of this Agreement by Company, nor the consummation by Company Parent or any of their respective Subsidiaries, to dispose of or hold separate any material portion of the transactions contemplated herebybusiness or assets of the Company, will violate Parent or any of their respective Subsidiaries, as a result of the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company Merger or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel other transactions contemplated by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Companythis Agreement, or for (iii) seeking to prohibit Parent or any of its Subsidiaries from effectively controlling in any material respect the accuracy, completeness business or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements operations of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement Company or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Subits Subsidiaries.
(d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated by the AICPA Statement No. 72 and customarily included in comfort letters relating to transactions similar to the Merger.
Appears in 1 contract
Samples: Merger Agreement (Fred Meyer Inc)
Conditions to Obligations of Parent and Sub to Effect the Merger. The obligations of Parent and Sub to effect consummate the Merger shall be subject to the satisfaction at or prior to the Effective Time of the following additional conditions, unless waived (if permissible) by Parent:
(a) The Company shall have performed in all material respects its obligations under agreements contained in this Agreement required to be performed by it at on or prior to the Effective Time Time, and except as contemplated or permitted by this Agreement, the representations and warranties of the Company contained in this Agreement (except to the extent such representations and warranties speak as of an earlier date in which case as of such earlier date) shall be true and correct in all material respects at when made and on and as of the Effective Time as if made at on and as of such time except as contemplated by this Agreement, and Parent and Sub shall have received a Certificate of the Chairman of the Board, the President or an Executive Vice President of Company as to the satisfaction of this condition.date;
(b) Parent and Sub shall have received an opinion a certificate, dated the Effective Time, signed by the President or Chief Executive Officer or a Vice President of Skaddenthe Company, Arpscertifying that the conditions specified in Section 6.3(a) have been fulfilled;
(c) In connection with the receipt of the approvals referred to in Section 5.5, Slateno approval shall impose on Parent or Sub any conditions or other requirements that would (i) cause Parent or Sub any material additional costs, Xxxxxxx or (ii) materially interfere with the continued operations of the Company and the Subsidiaries, taken as a whole, or Parent or its subsidiaries; and
(d) Parent shall have received a letter from Deloitte & XxxxTouche LLP, counsel Parent's independent auditors, dated a date within two business days before the date on which the Registration Statement shall become effective and addressed to Parent and Sub Parent, in form and substance reasonably satisfactory to Parent and Sub, dated on or about the date of the mailing of the Proxy Statement to stockholders, which opinion shall be reconfirmed as of the Effective Time, substantially customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the effect Registration Statement (including, among other things, that the Merger will constitute be treated as a reorganization for Federal income tax purposes within the meaning pooling of section 368(a) of the Code. In rendering such opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx may require and rely upon representations contained in certificates of officers of Parent, Sub, Company and others as well as certificates of shareholders who beneficially own five percent or more of the votes or value of any class of stock of Company and others.
(c) Parent and Sub shall have received an opinion from Xxxxxx X. Xxxxxxx, Senior Vice President and General Counsel of Company or Debevoise & Xxxxxxxx, special counsel for Company, dated the Effective Time, to the effect that:
(i) Company is a corporation validly existing interests under the laws of the State of Delaware.
(ii) Company has the corporate power to enter into this Agreement and to consummate the transactions contemplated hereby; and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by requisite corporate action taken on the part of Company.
(iii) This Agreement has been executed and delivered by Company and is a valid and binding obligation of Company, enforceable against Company in accordance with its terms, except (A) as may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and (B) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity jurisdiction, equitable defenses and the discretion of the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery of this Agreement by Company, nor the consummation by Company of the transactions contemplated hereby, will violate the Certificate of Incorporation or By-Laws of Company or, to the best knowledge of such counsel, and except as set forth in the Company Disclosure Letter without having made any independent investigation, will constitute a violation of or a default under (except for any such violation or default as to which requisite waivers or consents either shall have been obtained by Company prior to the Effective Time or shall have been waived by Parent and Sub in writing) any material contract, agreement or instrument to which Company or any of the Company Subsidiaries is subject and which has been specifically identified to such counsel by Company in connection with rendering such opinion.
(v) While such counsel assumes no responsibility for any event, occurrence or statement of fact relating to Company, or for the accuracy, completeness or fairness of any statements contained in or omitted from the Registration Statement or the Proxy Statement, and while such counsel expresses no opinion as to the financial statements or other financial or statistical data contained therein, with re- spect to information in the Registration Statement or the Proxy Statement relating to Company, the Proxy Statement complies as to form in all material respects with the requirements of the Exchange Act, and the applicable rules and regulations promulgated thereunder. In addition, in such opinion, such counsel shall state that such counsel has no reason to believe that the Registration Statement or the Proxy Statement, as amended or supplemented to the date of such opinion, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances in which they were made) not misleading, except such counsel expresses no belief as to the financial statements or other financial or statistical data contained in the Registration Statement or the Proxy Statement. As to any matter in such opinion which involves matters of fact or matters relating to laws other than federal securities or Delaware corporate law, such counsel may rely upon the certificates of officers and directors of Company and of public officials and opinions of local counsel, reasonably acceptable to Parent and Sub.
(d) Parent and Sub shall have received a letter from Ernst & Young, LLP, Company's independent accountants, dated the Effective Time and addressed to Parent and Sub, in form and substance reasonably satisfactory to Parent in connection with the procedures undertaken by them with respect to the financial statements and other financial information of Company and Company Subsidiaries contained in the Registration Statement and the other matters contemplated by the AICPA Statement Accounting Principles Board Opinion No. 72 and customarily included in comfort letters relating to transactions similar to the Merger16).
Appears in 1 contract
Samples: Merger Agreement (Mac Frugals Bargains Close Outs Inc)
